How the Boldt decision 50 years ago remade Pacific Northwest fishing

Louie Ungaro waited out the turn of the tide, when chum salmon — he hoped — would hit his net. Fishing here is his tradition, a practice and a way of life as old as his people, the Muckleshoot Indian Tribe.

“Elliott Bay ain’t going nowhere, and neither are we,” said Ungaro, a member of the tribe’s council and lifelong hunter and fisher.

As he talked, other tribal fishermen were all over the bay and on the Duwamish River, just as much a part of this place as the snowy dome of Mount Rainier floating over the bay, or the Olympics to the west.

Yet it took violent protests and a decision appealed all the way to the U.S. Supreme Court to affirm their right to fish, explicitly stated in treaties signed by their ancestors nearly 170 years ago as settlers colonized the Pacific Northwest. The decision handed down by U.S. District Court Judge George Boldt 50 years ago next month was the result of sacrifices made by Native fishers and their families jailed and beaten while defending these rights. And yet now another threat looms over all they fought for: scarcity of the fish themselves.

The struggle by Native fishers to fish on and off their reservations was a decades-long battle. Local tribal fishing activists used the same tactics as in the nation’s Civil Rights Movement of the 1960s and 1970s, forming broad coalitions with community, civil rights and church groups. They also sought public support with demonstrations, modeled on the civil rights era sit-ins, but in this instance, called fish-ins. The strategy was to alert the media and sometimes even call in celebrity support, from film star Marlon Brando to comedian Dick Gregory, to get arrested along with tribal fishers as the TV cameras and reporters got the story out to the world.

Billy Frank Jr., the renowned Nisqually fishing rights defender, was just 14 when he was arrested for the first time, fishing the Nisqually River. He would go on to be jailed more than 50 times, fighting for his tribal rights to fish on and off the reservation.

From the Nisqually to the Puyallup to the Green rivers and beyond, tribal members had to fish at night, sneak their catch home to their families, and endure harassment, beatings and worse.

Ramona Bennett, a Puyallup tribal elder and former council member and chairwoman, remembers well a riot on the banks of the Puyallup River. She and other fishing activists had staked out an armed fish camp that grew to dozens of tribal members and their supporters. After about six weeks, the police moved in with flak jackets and rifles and pistols and clubs, Bennett, now 85, remembered. “And they just came down on us, and they came with gas masks.

“This one of them pointed a gun at me and the barrel was like that big,” she said shaping her hands to a wide circle. “And pulled the trigger. And I thought I was dead. And there was a [expletive] gas canister and it just hit me and bounced around to the ground, and I kicked it back and pulled his gas mask. And that started a wonderful game of kick the canister, because once I did it, everybody started doing it.”

One of the police officers grabbed her, and instead of pulling away, Bennett jumped at him. “He rolled down the levee and into the river, and so I got charged with assault,” Bennett said.

By the time it was over, a railroad bridge over the river was burning and police made more than 60 arrests.

It was the tribe’s non-Native neighbors who helped bail them out of jail. “… Indian people they didn’t know, who were looking at doing serious time,” Bennett said. “They saw what was happening to us.”

So did the rest of the world, in newspaper, television and radio reports. “These people were eating dinner in Connecticut and Japan — all over the world — and they see Indians getting beat up, and they thought it was John Wayne in the theater,” Bennett said. “And then they realized it wasn’t, it was the news. And the question was, ‘What the hell are they doing to those Indians? And why?’”

Also gassed in the mayhem that day, Sept. 9, 1970, was Stan Pitkin, U.S. Attorney for Western Washington.

He would file the case that would change Washington history nine days later. In its plea on behalf of tribes in Western Washington, the United States would insist the state of Washington be made to honor treaty promises.

Treaty blitz of the 1850s

Isaac Stevens had his marching orders: The first governor of Washington Territory and the superintendent of Indian Affairs, Stevens had been dispatched by President Franklin Pierce to sign treaties with the Native people to clear the way for white settlement by diplomacy rather than conquest.

Settlers at the time were already staking their claims and seizing Indian lands. To ease conflict, gain clear title and accelerate settlement, Stevens was to make treaties that would put Native people on as few and as small reservations as possible, while gaining title to as much Indian land as he could.

Disease brought by non-Indians had already caused a terrible loss of life, with nearly 150,000 or at least 80% of the Native people of Puget Sound and the Northwest Coast killed by introduced pathogens during the first century of European contact beginning in the 1770s, maybe earlier, according to historian Robert Boyd in his book “The Coming of the Spirit of Pestilence.” Now the Native peoples would lose most of their lands.

In a treaty-making blitz, Stevens in just 13 months from 1854 to 1855 secured 10 treaties, ceding to the United States more than 100,000 square miles of Indian lands, from the farthest northwest tip of the Olympic Peninsula to the Rocky Mountains.

The treaties — and the dynamics of the treaty councils — were similar.

Stevens and his helpers would lay out the treaty terms in English translated three times. Chinook jargon — a trade language of about 300 words capable of conveying only rudimentary concepts — was translated by the government’s representatives to local Native dialects. Some Indians could read and write in English. But there remained plenty of confusion about the deals struck.

Stevens and his helpers chose some of the signers, naming as chiefs and sub-chiefs people who simply were well known to whites in the area — or whom Stevens had bribed with gifts or drink — but who may or may not have had any authority to speak for all the people they signed for. They also created associations of seminomadic autonomous family groups as tribal political entities, to suit their own political purposes.

The treaties were not a grant of rights to the Indians, but rather a grant of rights from them except for the rights they held in reserve, including their rights to fish, hunt and gather. Stevens had been advised by his staff that he would never gain the treaty agreements he sought without incorporating explicit acknowledgment of the tribes’ reserved fishing rights in the treaties.

Every Stevens treaty includes this, or very similar wording: ” … 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.”

To the Indians, this was a matter of sustenance and survival: Even amid the change of worlds upon them, the treaties would honor their right to travel beyond the reservations to hunt, fish and gather where they always had.

To the treaty negotiators, the fishing rights guarantee was an easy give. Settlers were seeking clear title to lands for farms, towns, mining and timber. Fishing was peripheral — and seemingly inexhaustible.

With the invention, however, of industrial-scale fishing and canning by non-Indian commercial enterprises, that changed.

By 1883 there were 39 canneries and 1,700 commercial fishing boats on the Columbia River. By the 1890s, barges in Elliott Bay were mounded with so many salmon the canneries could not use them all, dumping the rest as waste.

Meanwhile, salmon habitat throughout Puget Sound was being hammered by a wholesale remaking of the lands and waters, sluicing down hillsides with water cannons, filling tide flats to create more buildable land, and dredging, straightening, rerouting and damming rivers. Harvest peaked in many parts of Washington by the late 1800s, and by then many populations of salmon, further depressed by habitat destruction and dams, were pushed to local extinction.

As salmon runs declined, the state cracked down on Indian fishing — even as it granted commercial fishing licenses to gill-netters for as little as $15 a day with no daily catch limit. The department’s regulations, as framed and enforced, allowed all or a large portion of the harvestable numbers of fish to be taken by fishermen with no treaty rights before the fish reached tribes’ usual and accustomed fishing areas. The state also was closing off entirely a substantial number of those areas to all forms of net fishing, while permitting commercial net fishing for salmon elsewhere on the same fish populations.

This, as Billy Frank Jr. told Charles Wilkinson, whose book on the Boldt decision comes out Jan. 16, was a war: With guns, clubs, chase boats and night vision scopes, state game wardens pursued tribal fishermen, sinking their boats, and cutting their nets.

“They beat the bottoms out of the canoes — the old-time canoes, all of the canoes that had survived the war and the cannons and everything that had happened, they beat out the bottom,” Bennett said.

“They would arrest Indians and treat them like thieves.” Seizing boats and fishing gear also made it impossible for fishing families to work. Bennett remembered a fisherwoman yanked up a riverbed by police, “dragged up this dirt hill holding on to this net, because you have to feed your family.

“This was going on every river, on every run of salmon, there was this conflict.”

A monumental decision

In his Tacoma courtroom, Judge Boldt, a bow-tied, bespectacled, button-down white male judge, nominated by President Dwight Eisenhower on June 10, 1953, sought to bring law and order to the chaos on the rivers. He presided over nearly three years of discovery and pretrial motions. The three-week trial finally began Aug. 27, 1973, with 49 witnesses whose testimony filled some 4,600 pages of trial transcript; 350 exhibits were admitted. Boldt held court six days a week with no break for Labor Day weekend.

Barbara Lane, an anthropologist by training, was the tribes’ expert witness. She remained cool under questioning and definitive in her answers as she spelled out the fishing traditions of the tribes, their meaning and importance. Boldt listened as well to hours of testimony by tribal elders as to their fishing traditions and culture.

John Hughes, now chief historian in the Washington Secretary of State’s Office, was in the courtroom. “There are certain moments in your life where 50 years on, you can remember exactly what it was like,” Hughes said. “If I close my eyes, I can hear Barbara Lane’s voice. I can hear all the voices as they put the tribal elders on the stand. And I can see the look on Boldt’s face. He was absolutely rapt.”

The judge’s decision affirmed the tribes’ reserved treaty right to fish. But he also enumerated the share of the catch “in common with” the citizens as half the harvestable number of fish (after the amount needed to return to spawning grounds) — to be determined by co-management of the fishery.

The decision, announced almost five months later, was front page news in Seattle and beyond (though not nationally) — and reactions across the region were intense. Tribes had won — but were affirmed in their right to half the catch, not all of it. Bennett still remembers leaping from her desk so fast when she heard the news that she landed in the trash can saying, “We just lost half our fish.”

Amid nontribal fishers and their backers in state government, the backlash was sustained and powerful.

Boldt was hung in effigy outside the Tacoma courthouse. Protests by commercial and sport fishermen drew hundreds of participants — in one instance, temporarily blockading a state ferry. The state fisheries director and Attorney General Slade Gorton — later a Republican U.S. Senator for Washington — told commercial and sport fishers the ruling would surely be overturned, and quickly appealed it.

Meanwhile, illegal fishing by nontribal fishers was so rampant, Boldt personally took control of the state fishery, using federal magistrates to enforce the law. They issued thousands of poaching citations and made hundreds of arrests.

Hughes started his career as a reporter the Aberdeen Daily World in 1966, becoming editor in 1977. He remembers the anger of those years. “The charter boat operators, the commercial fishermen, the sport fishermen, they feared that their livelihoods were at risk, that they would be auctioning off their boats; they felt it was singularly unfair. Which I could never grasp.”

In 1978, the U.S. Court of Appeals for the 9th Circuit affirmed the findings of Boldt’s decision, challenged in a related case. Circuit Judge Alfred Goodwin wrote: “Except for some desegregation cases … the district court has faced the most concerted official and private efforts to frustrate a decree of a federal court witnessed in this century.”

Still the state did not relent. Gorton insisted the decision granted special rights, violating the equal protection clause of the Constitution. He appealed the decision again, this time to the Supreme Court. In its ruling in 1979, the nation’s highest court affirmed the decision once and for all.

No one should be surprised the treaties are still binding, said Ungaro, the Muckleshoot fisherman, noting it’s no different from a mortgage payment that continues in force even decades after it is signed.

“You don’t get to say, ‘I don’t feel like doing this anymore,’” Ungaro said, as he fished the waters of his ancestors.

Lasting influence

Scholars and historians have long celebrated the importance of the Boldt decision, for the magnitude of the fight it settled at the time and its enduring importance today and into the future.

The decision remains momentous and has been the basis for more rulings, as well as land-use decisions in Washington.

The tribal treaty right to gather wild shellfish on private tidelands was affirmed in 1994. And the Boldt decision underpinned a 2013 injunction requiring repairs to highway culverts in a large portion of the state, at a cost of billions of dollars, to improve fish passage.

In addition to court decisions, treaty fishing rights have been the fulcrum on which important recent land use decisions have turned. What would have been the largest coal port in North American didn’t get built at Cherry Point, near Bellingham, after the Lummi Nation prevailed in its objection that gigantic ships transiting the coal dock would impede their treaty right to fish.

Treaty fishing rights are also at the heart of long-running conflict and litigation over dam removal on the Lower Snake River and dam operations in the Columbia Basin to protect salmon.

Treaty fishing rights will continue to shape what does — and doesn’t — happen in Washington. But as settled as the acknowledgment of the treaty right is today, it took more than a century to get there.

“These treaties were solemn promises by the United States of America,” said Hughes, the state historian, whose book on Boldt, “Lightning Boldt,” publishes this week. He ranks Boldt as one of the few people who have made an indelible contribution to Washington state.

“The Boldt decision is so important, because we kept our word,” Hughes said. “And we restored it to all the treaty tribes. This wasn’t just about feeding their families, it was sacred to them. It was their very way of life.”

Salmon still struggle

On a recent bright, windy day, James Rideout, a member of the Puyallup Tribal Council from a fishing family, was going out for chum. As he pulled up to the boat ramp in Purdy, Pierce County, he positioned his aluminum skiff deftly, and readied to head out.

These were the motions of someone doing something they have done since they were a child, watching their parents do the same. Preparing the net. Positioning the cinder block anchor to throw from its rope. Finding a stick to jam in the boat’s drain hole (the plug had gone missing).

Soon, he floated the boat off its trailer onto Puget Sound. It was time to fish.

Rideout blazed through blue water spangled with sun toward Minter Creek. As he motored down the Sound, Rideout watched the banks flash by where he had camped with family on fishing trips. “When I am out here, I think about my parents, I think about the memories that we have here. The way of life that we live. It really fills my heart,” Rideout said.

He remembered wondering as a child why his dad always had to fish in the dark. “When I was a child I would cry at night because my parents would leave and I wouldn’t know why, and I always wondered why they worked at night,” Rideout said. It wasn’t until after the Boldt decision that he understood what they were doing.

“It never should have been taken away to begin with,” Rideout said of the tribes’ fishery, “but 50% of something I say to myself is better than 100% of nothing.

“That is what we had at that point, pre-Boldt.”

Finally reaching the fishing spot he wanted, Rideout payed out the net. Almost immediately its floats dipped violently. This was not a fish.

“Look at that seal,” Rideout said with disgust. “See those corks coming down? See how it’s pulling the net around?” Nearly all of the fish he caught that day were mauled, some just bitten, others chewed to bare bone. One beautiful fish he tossed in the cooler, a keeper. “This is a bright,” he said of the silvery chum, fresh from the sea. “This is a bright gem.” Rideout would gift this fish to tribal elders.

All over Puget Sound country, as fall gave way to winter, fishers like Rideout, like Ungaro, like so many others, were bringing in the last fish of the year, like so many fishers in their families before them. Yet despite their victory in court, and the acceptance today of co-management, tribes today are losing on the rivers.

Rideout ruminated on his catch that day. Back at the time of the Boldt decision, that net he had just set would catch 100 to 200 fish, Rideout said. “And today, we may go home with a dozen or so.”

All over Puget Sound, tribes are catching fewer fish today than before the Boldt decision. It’s not police keeping them off the fishing grounds that are hurting the tribal catch. Today the fish just aren’t there — for anybody — not even the animals that depend on salmon, including endangered southern resident orcas. Puget Sound Chinook, the king of fish, are more depleted today than when they were listed in 1999 for protection as a threatened species under the Endangered Species Act.

Fish promised in treaties and court decisions are paper fish. And paper fish, to the Salmon People who fought in the treaties, on the riverbanks and in court to defend their way of life, are not enough.

“It’s everything,” Rideout said of salmon. “We’re nothing without it. As Coast Salish people, it’s a staple of our existence. It’s the bloodline that runs through us.

“I don’t want salmon to be in a museum, or on a wall.”