By the early 1960s, Washington state had almost extinguished tribal fishing rights. State officers regularly conducted raids, arresting Native fishers and confiscating their canoes, gear and catches. “It was nearly a daily event to get hassled by those guys,” Billy Frank Jr. recalled. “It was a good day if you didn’t get arrested.” Now, some 60 years later, Indian treaty fishing rights stand solidly protected, and tribes play a central role in managing Washington’s fisheries. How did this momentous shift come about?
This is the question the late Charles Wilkinson tackles in his latest, and posthumous, book, Treaty Justice: The Northwest Tribes, the Boldt Decision, and the Recognition of Fishing Rights, the first comprehensive, book-length account of all that led up to the landmark 1974 case, United States v. Washington, commonly known as “the Boldt Decision.”
There is probably no author better suited to recount this history than Wilkinson, who died in June 2023. Not only did Wilkinson, a renowned scholar and professor at the University of Colorado Law School, produce ground-breaking work on tribal sovereignty, land and water issues and American history, including Blood Struggle: The Rise of Modern Indian Nations and Crossing the Next Meridian: Land, Water, and the Future of the West, but, as a lifelong advocate for Indian Country, he knew and worked with many of the people involved in the case. As Wilkinson notes in the preface, it was Frank himself, a Nisqually Indian and one of the central figures in the struggle, who specifically requested that he write “a readable and accessible book” on the subject for tribal members and the general public.
Treaty Justice turns on three key time periods: the 19th century Treaty Time; the long process of litigating the Boldt Decision; and the present. The first period ended in the 1850s, when the treaties between the United States and the tribes were signed and ratified. Isaac Stevens, the governor of Washington Territory, was tasked by President Franklin Pierce with convincing the tribes to relinquish their vast territories and move to reservations, thus clearing the way for white settlers. “The Great Father wishes you … to have homes, pastures for horses, and fishing places,” he told the Nisqually, Puyallup and Squaxin Island people who gathered for the first council on Dec. 26, 1854, on the Treaty of Medicine Creek. Despite their anger at the prospect of losing their homelands, as well as their uncertainty as to what Stevens’ unilaterally proposed document really meant, most of the designated leaders — men chosen by Stevens for the purpose — signed the treaty, reassured by the governor’s promise that “this paper secures your fish.”
It was Frank himself, a Nisqually Indian and one of the central figures in the struggle, who specifically requested that he write “a readable and accessible book” on the subject for tribal members and the general public.
In a few short months, Stevens obtained signed treaties involving title to millions of acres of land. Crucially, all of these treaties declared that the tribes involved, “in common with all citizens of the Territory,” had the “right of taking fish, at all usual and accustomed grounds and stations.”
But the treaties can only be understood in context. In the years leading up to them, the Northwestern tribes, once prosperous and firmly established around the Salish Sea, were ravaged by diseases introduced by white explorers and traders and under growing and increasingly violent pressure from settlers encouraged by the government’s expansionist policies. Wilkinson offers vivid portraits of many of the key figures, including Stevens, a man with no understanding of or respect for tribal culture; George Gibbs, a lawyer who drafted the treaties and insisted, based on his own considerable knowledge, that the Indians would not sign them unless their fishing rights were protected; and Leschi, a Nisqually leader who chose to resist the settlers. He also provides fascinating detail on the settings, negotiations and circumstances for each of the treaty signings.
In the century that followed — what Wilkinson describes as “the long suppression” — the tribes suffered from decades of federal policy deliberately designed to take their lands, destroy their cultures and deprive them of any political power. As Ramona Bennett (Puyallup), a fisher and advocate for tribal sovereignty, put it years later, “Our people suffered a deprivation of fishing for ninety years. Ninety years: That’s twice the length of our median lifespan.” But even as state agencies ramped up raids on Native fishers into the early 1960s, tribal activists, inspired by the growing national movements for civil rights, fought to defend their fishing rights. Wilkinson’s stirring account of the tribes’ campaign is the heart of the book, and perhaps its strongest section.
This well-orchestrated effort first won public support and then, crucially, the support of officials in the U.S. Department of the Interior and the Department of Justice. After a major federal court victory in 1969 on fishing rights in Oregon, followed by Richard Nixon’s surprising 1970 “Special Message on Indian Affairs,” which called for tribal self-determination, the tribes brought their fight to court with the help of skilled and passionate attorneys.
Wilkinson does an admirable job of guiding the reader through the long and tortuous legal proceedings — the years of preparation, the groundbreaking trial itself, which featured important testimony from many Indigenous people, and the legal intricacies of the lengthy decision. He justly portrays Judge George Hugo Boldt as a far-sighted jurist who embraced the complex litigation and hewed carefully to the developing law as it moved in favor of the tribes’ position during the 1970s. Boldt was firmly committed to using the power of the courts to resolve the long-simmering conflict once and for all. But Wilkinson’s account also shows clearly how the decision, although named for Boldt, can only be understood as the result of the work of generations of dedicated people, starting with those who, like Billy Frank Jr., continued to fish as their people always had, refusing to surrender their rights even in the face of tremendous adversity.
“Our people suffered a deprivation of fishing for ninety years. Ninety years: That’s twice the length of our median lifespan.”
Unsurprisingly, the ruling was met by civil unrest and open disregard of the law, abetted by the state government, including the courts. The conflict only began to abate when the U.S. Supreme Court, recognizing the need to support Boldt’s efforts to enforce his order, affirmed the decision in 1979. After that, as key state leaders began to change their attitudes, the decision began to take hold, bringing co-management to fisheries, strengthening tribal governments, and permanently altering the relationship between Washington and the tribes.
Today, the Boldt Decision, fully established under the continuing jurisdiction of the federal court, still provides the framework for addressing important issues, including major rulings on shellfish harvesting in 1994 and the removal of salmon-blocking stream culverts in 2013. More broadly, as Wilkinson argues near the end of the book, it has become an important example — desperately needed in our divided society — of a case where “the rule of law held, not just in the courts, but in Congress and the general public, as well.”
“The Boldt Decision was an epic point in our history,” Ron Allen, the chairman of the Jamestown S’Klallam Tribe, told Wilkinson in 2023. “It restored our peoples’ right to our rivers and the salmon that is our cultural identity. The decision recognized that the treaties reserved our sovereignty and traditional practices for our people and grandchildren forever.”
Devin Odell is a retired judge who divides his time between Fort Collins, Colorado, and the Salish Sea. We welcome reader letters. Email High Country News at editor@hcn.org or submit a letter to the editor. See our letters to the editor policy.
This article appeared in the May 2024 print edition of the magazine with the headline “Where the rule of law held.”
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