Boldt Decision – 50 Years – Part 1

February 12, 2024 marks 50 years since federal Judge George Boldt issued the landmark decision that fully recognized the Indian fishing rights spelled out in the 1854 Medicine Creek Treaty. This decision benefitted not just Indian fishing communities but all the people of Western Washington, our salmon, and the environment. It’s a remarkable story, but not a short one and thus, I am dividing it into three parts.

As a longtime Natural Resources Program Manager employed by the Nisqually Indian Tribe (since 1980), I’ve had a long view of what the Boldt decision has changed, here and in the nation and the world. I’ve also learned the personal stories of Indian fishermen who tried to exercise their treaty right to fish in the Tribe’s “usual and accustomed places” that were not on reservation land.

When I started working for the Nisqually Indian Tribe, there were two older guys in our Natural Resources Department who had scars on the back of their heads, the result of being clubbed by agents of the Washington Department of Game in conflicts over what the state termed illegal fishing.

The conflict that led to the Boldt Decision was a life-and-death struggle of our fellow citizens to secure their rights and, more recently, to ensure that native salmon will thrive for generations into the future.

This 50^th anniversary of the Boldt Decision is of special interest to us living in Thurston County because many of the events leading up to the trial occurred here.

Billy Frank Jr. and Judge George H. Boldt.

The first was the December 1854 Treaty Council, held in the Nisqually Delta area at a traditional Indian meeting place along what is now called McAllister Creek. Most of that location is now buried by the southbound lanes of I-5, but until fairly recently, its edge was marked by several large fir trees known as the “treaty trees.” The descendants of those trees still line the northbound I-5 entrance lane in the center of the Nisqually Valley.

The resulting treaty included an article that was central to the issues placed before Judge Boldt. His assignment was to establish for all time the meaning of the following phrase in the Treaty of Medicine Creek of 1854:

“The right of taking fish, at all their usual and accustomed grounds and stations, is further secured to said Indians in common with the citizens of the Territory. . . .”

That seems simple enough, but it’s not. Legal challenges to off-reservation Indian fishing rights – in their “usual and accustomed” places – had been raised by the states of Washington and Oregon beginning in the 1880s and continuing ever since. And, despite multiple U.S. Supreme Court decisions confirming in some way these treaty rights, the challenges persisted.

The State of Washington insisted that it alone had the authority to regulate off-reservation Indian fishing and proceeded to outlaw most in-river net fishing. Not surprisingly, treaty-right fishermen fought against such regulation and some of the most dramatic and nationally famous conflicts happened just downstream from the Nisqually Reservation at a place called Franks Landing.

Franks Landing is a site along the river that belonged to Willie Frank, who was born in 1871. In 1917, when his on-reservation allotment was seized by Pierce County for inclusion in Fort Lewis, Frank bought the six acres on the riverbank and moved there. (Willie Frank was the father of Billy Frank, Jr., and the grandfather of the current Nisqually Tribal Chair Willie Frank III.)

Billy fishes the Nisqually River with his sons Willie, left, and Sugar in 2010.

He and others continued to fish from that off-reservation location as they had for generations but, as time went on, the State of Washington challenged the legality of this fishing, resulting in numerous arrests and multiple court decisions. In the 1950s and 1960s, these conflicts escalated and came to be known as the Indian Fish Wars. Many fishermen came away from those conflicts with scars from being beaten by state Game agents. Their defense of their fishing rights drew other tribes, many supporters from the civil rights movement, several celebrities, and national and international news coverage.

Finally, the federal government came to the Indian fishermen’s defense.

In 1970, the federal government filed a lawsuit (in a case named United States vs. Washington) seeking to protect Indian treaty fishing rights against ongoing state harassment and to resolve the question of off-reservation fishing rights. The case was assigned to Judge George H. Boldt and came to trial in 1973 at the Tacoma federal courthouse. Judge Boldt heard from multiple expert witnesses and Tribal witnesses, including Willie Frank. Boldt’s decision was lengthy and included a comprehensive analysis of treaty fishing rights. His key findings, later confirmed by the U.S. Supreme Court, were:

            1) The treaties clearly reserved Indian tribe’s fishing rights that they already possessed: the right to fish not just on the newly created reservations, but at all traditional (usual and accustomed) sites.

2) These fishing rights had not been changed or diminished by Congressional or Executive actions, including the creation of the State of Washington. Therefore, they were the “Law of the Land” and the State of Washington was bound by them.

3) The language “in common with” would have been understood at treaty times as “shared equally,” that is, a 50/50 division of the harvestable fish between Indian treaty fishing and non-Indian fishing interests, as represented by the State of Washington.

4) The treaties implied that tribes had the right to manage their own fisheries, including off the reservation, subject only to the need to conserve the salmon and steelhead.

The state immediately appealed the decision, but it was upheld by the Ninth Circuit Court of Appeals. A year later, the U.S. Supreme Court decided not to hear the state’s appeal, thus upholding Boldt’s decision.

The reaction to the decision by most citizens and the leadership of the state was immediate and virulent. Part 2 of this will continue from this point in the Boldt Decision story.

Billy with his parents, Angeline and Willie Frank.

George Walter, environmental program manager at the Nisqually Indian Tribe’s natural resources department, has worked for 45+ years in various elements of fisheries for the Tribe. He may be reached at george@theJOLTnews.com

EDITORS NOTE: For clarity and accuracy this article was edited on  2/12/2024, 6:11 p.m.