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40 Years Later: Boldt Decision Celebrations With Some Caution

Washington state tribes recently celebrated the 40-year anniversary of what has become known as the Boldt Decision for tribal fishing rights.

Their heads are grayer, their steps slower, but these leaders are no less courageous than when they fought the Fish Wars in Western Washington 40 years ago.

“That was our Super Bowl,” former Puyallup Tribe chairwoman Ramona Bennett said.

On February 5, Bennett talked about being gassed, beaten and arrested by law enforcement officers during the height of the battle. Those officers rammed canoes, cut nets, confiscated gear. They had no jurisdiction over Native Americans fishing in their usual and accustomed areas, but they were trying to enforce the state’s catch limits and fishing-license laws there nonetheless.

The state’s view: Treaty rights were special rights; Indian fishing had to be regulated in order to protect salmon. The Indians’ view: The state was discriminating against them so non-Indians could take all the fish.

Indeed, salmon runs throughout the region had plummeted, but the state didn’t want to look at the commercial fishing licenses it gave to non-Indians for $15 a year with no daily catch limits. It didn’t want to look at habitat that had been damaged by deforestation, agricultural runoff, tainted stormwater runoff, and dams and culverts that blocked fish passage. It wanted to blame 1 percent of the population, the people who had fished here forever, those whose relationship with salmon was cultural and spiritual as well as vital to their health.

The state’s First Peoples won that battle, but another battle continues: Reversing more than a century of bad environmental policy so salmon populations can rebound and thrive.

The Northwest Indian Fisheries Commission presented “Boldt 40” on February 5-6, a commemoration of the 40th anniversary of U.S. District Court Judge George H. Boldt’s landmark ruling in U.S. vs. Washington. The celebration was held in the Squaxin Island Tribe’s Little Creek Casino Resort Event Center.

In 1970, the U.S. sued the State of Washington on behalf of the Treaty Tribes, alleging the state was preventing the Tribes from exercising the fishing rights guaranteed them under treaties signed with the U.S. On February 12, 1974, Boldt ruled in favor of the Treaty Tribes. An article in the treaties states “The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory.” Boldt interpreted “in common with” to mean an equal share, 50 percent of the available salmon harvest.

But Boldt’s ruling, upheld by the U.S. Supreme Court, did more than affirm Indian fishing rights. It upheld treaties as being supreme over state law, as stated in the U.S. Constitution. It established Treaty Tribes as co-managers of the salmon fishery. And, as Muckleshoot Tribe attorney Alan Stay said, it spawned other actions designed to protect salmon – because if there is no salmon fishery, then the treaty is violated.

In 1985, Canada and the United States signed the Pacific Salmon Treaty; through the Pacific Salmon Commission, both countries cooperate in the management, research and enhancement of Pacific salmon stocks.

In 1994, U.S. District Court Judge Edward Rafeedie ruled that indigenous treaty signers had also reserved the right to harvest shellfish from any beds not “staked or cultivated by citizens,” meaning all public and private tidelands are subject to treaty harvest. “A treaty is not a grant of rights to the Indians, but a grant of rights from them,” Rafeedie wrote in his decision.

In 1999, the state Legislature adopted the Forests & Fish Law, directing the state’s Forest Practices Board to adopt measures to protect Washington's native fish and aquatic species and ensure compliance with the Clean Water Act. The law affects 60,000 miles of streams flowing through 9.3 million acres of state and private forestland.

Richard Walker

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Twelve speakers were honored with Pendleton blankets for participating in panel discussions at Boldt 40, February 5 at the Squaxin Island Tribe’s Skookum Event Center. Three of them, from left, are Alan Stay, attorney for the Muckleshoot Tribe; Bill Wilkerson, former director of the state Department of Fish and Wildlife; and Fawn Sharp, president of the Quinault Nation. The day commemorated the 40th anniversary of the U.S. District Court decision in U.S. vs. Washington.

Gilbert Kinggeorge, Muckleshoot, said the victory in the Fish Wars “opened the door for everyone to participate in fighting for treaty rights.” He talked about some of the challenges, at one time seemingly insurmountable, that Native Nations have overcome recently in order to restore salmon habitat: The removal of several miles of dikes to restore the Nisqually River estuary; the removal of two dams on the Elwha River; the Muckleshoot Tribe’s purchase of 96,307 acres of forest through which the White River flows on its way to Puget Sound.

“There are many others,” Kinggeorge said, adding that battles are not over. Indeed, in 2013, U.S. District Court Judge Ricardo Martinez ruled that the state must remove hundreds of state highway culverts that block fish passage over the next 17 years. The state is appealing the decision.

“Tomorrow, there is going to be another battle. We’re going to win that one too,” Kinggeorge said.

Billy Frank Jr., chairman of the Northwest Indian Fisheries Commission, told young people in attendance to remember the stories they heard that day.

Frank stood on the stage with a crowd of Native children, held an eagle feather, and told of when his father was at boarding school. “He couldn’t speak his language, he couldn’t sing these songs. He couldn’t wave this eagle feather, he couldn’t pray. It was a bad time,” Frank said. “Now is a good time. We’re singing these songs and speaking our languages again.”

He continued, “Remember this day, this history. You are going to be the next generation to take the fight on. It never stops. Fight for your culture, fight for your way of life.”

Quinault Nation President Fawn Sharp talked about the fire that was lit by those who have fought the battles.

Outside forces tried to “destroy us, take away our culture, our language, take away our ability to just do basic things, like hunt and fish,” she said.

“But that spirit that lies in all of us, that spirit of strength, when those battles seem to create a world and environment where it seems like we are losing the battle, those embers fan in our cultures we see today. Whether it’s Tribal Journeys or our language restoration programs, we see us going back to our roots and who we are as the Creator intended.”

Virginia Riedinger, Judge Boldt’s daughter, said her father took U.S. vs. Washington “with no prejudice one way or the other,” but by the time of his ruling, “I remember him saying the Indian had been cheated.” Even when her father was hanged or burned in effigy and the state defied his ruling, “He was never angry or indicated he was upset. He felt he made the right decision. And he had no problem enforcing it.”

Western Washington Treaties

Treaties signed by the U.S. and indigenous nations of what is now Western Washington: The Treaty of Medicine Creek, December 26, 1854; Treaty of Point Elliott, January 22, 1855; Treaty of Point No Point, January 26, 1855; Treaty of Neah Bay, January 31, 1855; Treaty of Olympia, July 1, 1855 and January 25, 1856. The treaties made land available for non-Native settlement; indigenous signers reserved land and certain rights for themselves and their descendants, and the U.S. agreed to pay with annuities, the provision of education and health care, and other considerations.