Jacob Bruce, a 12-year-old student in the 7th Grade at Kingston Junior High School, won second place in the 2007 History Day competition with this essay on Native American fishing rights.
Trust in Treaties
Native Americans and Caucasians in the Puget Sound area have been in conflict over fishing rights since the time of the first treaties. Native peoples gave up much to the white men, and gave generously, because they wanted to live in peace with the white settlers moving on to their traditional lands. In signing the Medicine Creek and Point No Point Treaties of 1855, the Suquamish, Port Gamble S’Klallam, and other tribes received guaranteed rights to continue to fish on-reservation and in other usual places. In return they ceded large tracts of land to Isaac Stevens, the newly appointed governor of Washington Territory. However, over the next hundred years, the tribes lost many of their treaty rights through state and locally imposed restrictions.
The battle to retain their fishing rights seemed destined to end in tragedy as the tribes challenged the infringements in court and lost their cases. But by the 1970s, protests, “fish-ins,” and the challenges of the tribes attracted the notice of the United States government, who joined the tribes in suing the State of Washington. Tragedy changed to triumph when Judge George Boldt handed down his decision in U.S. v. Washington, permanently improving the lives of the tribes by giving them a greater percentage of the annual catch, and by returning to them many of their traditional fishing spots.
The Salish peoples of the Puget Sound region lived in tribes that sometimes intermarried and shared similar languages. The Nisqually, Clallam, Muckleshoot, Puyallup, Suquamish, and Skokomish, in addition to many others in the greater Pacific Northwest, have always understood the value of the area’s natural resources: The Puget Sound basin is a large and fertile watershed, and is home to much wildlife, particularly salmon. When Natives heard white men talk about heaven, they did not understand. All they needed to live and remain happy was in their surroundings (Johnson). Six kinds of salmon swim in Puget Sound waters, as well as the migratory steelhead trout, a staple of the tribal diet. Native culture featured salmon in rituals, mythology, and constellations.
As the United States extended its land claims westward, fur trappers, followed by missionaries and settlers, moved into the Northwest and claimed large tracts of land. Natives understood concepts of ownership. However, they held different ideas about ownership than did the white settlers. The Natives already had a tradition of where an individual could or could not fish: they could fish near their village, a relative’s village, or near the village of their birth (Cohen 24). The settlers’ land ownership ideas were much more precise and they protested when Natives attempted to fish at usual and accustomed places now that the lands were claimed by whites.
President Franklin Pierce appointed Isaac Stevens first Governor of Washington Territory in 1854 with the purpose of surveying the territory for the railroads and, as Superintendent of Indian affairs, negotiating treaties with the local tribes. In 1854-1855, Stevens set out to make treaties with the Natives to legally secure the territory he controlled and had already given to settlers, which limited Natives’ fishing rights and took much of their land. The Medicine Creek and Point No Point Treaties were two such agreements. The Natives’ paramount objective in the negotiations was to reserve their fishing rights, which they did (NWIFC "The Truth ..." 6). Stevens, as a representative of the United States government, also offered things such as healthcare, supplies, a school system, and money, many of which the tribes never received (Zischke).
Stevens had many reasons to try to make treaties (Pevar 33). He tried to move Natives to reservations to obtain land for white settlers (Harmon 82). Stevens also tried to slowly shift the Natives from hunting, fishing, and gathering to farming, a more civilized lifestyle in his opinion. Finally, he wanted to give Natives individual ownership of land. Even though Stevens was trying to get the Natives to agree with his treaties, he liked and respected them (Treaty Indian ...).
Part of the problem with the negotiations was an inability to communicate. The whites and the Natives used the Chinook Jargon, a trade language, to communicate, which made for difficulties in translation and needed interpreters from both parties (George). The fact of the Natives’ illiteracy compounded the problem. They could barely sign Xs (Stevens, 9), let alone write the Chinook Jargon. They did not speak or understand English. The treaties created other problems as well. Being a matter of executive order, the government did not grant all tribes formal treaties (Deloria, 67). These non-treaty tribes missed out on any recognition or rights at all. They had to deal with prejudice against them without any additional rights. In addition, the Natives and whites did not understand each other’s concepts of ownership.
At first, fishing rights were not much of a problem. Settlers were not much interested in fishing, as they concerned themselves with logging, farming, and other such things as they settled down. However, around the turn of the twentieth century, as the population grew, more and more commercial fishermen started competing with the Natives for fish (Zischke).
Subjected to state and local regulations that placed restrictions on their fishing rights, Natives appealed arrests, and sought legal representation. The state and federal courts decided many Native fishing cases before 1920. In the way of cases, there were two main questions: Where can the natives access the then seemingly infinite salmon, and, later, How much of this dwindling resource should the Natives hold a right to fish? Some of the decisions bolstered the Natives’ rights, some of them kept the Natives’ rights as they had been, and some of them restricted the Natives’ rights.
The 1887 “Fence” case held that the Natives’ treaty rights overruled personal property claims. Frank Taylor, a resident in Washington Territory, built a fence to protect his crops. However, natives of the Yakima Tribe had always fished there, making it a “usual and accustomed ground or station” (Cohen 38). The District court, which originally decided the case, ruled against the Natives. The Natives appealed to the Washington Territory Supreme Court, which reversed the decision of the District Court and ordered Taylor to take down the fence so as to let the Natives at their fish. This decision made Native treaty rights legally superior to personal property rights asserted by a white citizen (Cohen 54), a triumph for the tribes.
The 1905 “Wheel” or Winans case held that superior equipment does not mean superior rights. The Wheel case made its way to the United States Supreme Court before any other Native fishing-rights cases. Winans owned property and operated a licensed fish-wheel on one of the Yakima Tribe’s usual fishing spots. Winans argued that he had more sophisticated fishing technology, and also that since Washington had become a state, the treaties between the federal government and the Natives no longer held validity in Washington. Justice Joseph McKenna rejected both points, and further affirmed that judges must interpret the treaties as the Natives would have understood them, that judges should remain guided in these matters by justice and reason, and that because the United States government held greater power than the tribes, it was obliged to treat them with fairness. McKenna made another important point: that in entering into the treaties, the Natives had granted territory and rights to the United States (Cohen 54).
The 1916 “Towessnute” and “Alexis” cases restricted Natives’ rights by making them subject to state regulations. Towessnute and Alexis, both Native American fishermen, violated state fishing regulations, and the court found them guilty. The court held that the treaties gave the Natives only an easement, making Natives subject to state fishing regulations. Justice Bausman, a state Supreme Court Justice, also wrote that Natives, when compared with white men, looked “incompetent,” stood as a “child” to the white men, and that “the premise of Indian sovereignty we reject” (Cohen 57). The Natives retained an easement to access off-reservation fishing sites, but lost the power to regulate their own fishing. The state could regulate it as much as it wished.
In 1925, the Department of Game decided that steelhead trout were game fish, not salmon. This meant that no one but sports fishermen and Natives could catch them. In 1927, the state extended the ban to Natives as well for the purpose of conservation. In 1934, the state banned fixed gear, such as nets, from use in catching salmon.
The 1939 “Tulee” case held that while the state could regulate Native fishing, it could not do so by imposing license fees. Sampson Tulee, a Yakima Native, obtained federal support when authorities almost arrested him for fishing and selling salmon without a license. Tulee, cited for fishing without a license, lost in the county court and in the Washington State Supreme Court. When he made his way to the U.S. Supreme Court, the court decided that Washington State made licenses and fees for regulation as well as for revenue. Concluding that it was unfair to impose fees upon rights their ancestors reserved in treaties, the U.S. Supreme Court ruled that while the state had the ability to regulate, it could not do so with license fees (Cohen 62).
The 1951 “Makah” case held that Washington State should not impose bans on fishing not essential for conservation. The Makah Tribe did not want the state interfering with their fishing when the state banned net fishing. The resulting case made its way to the Ninth Circuit Court of Appeals, which did not think the ban necessary for conservation, and promptly abolished it (Cohen 63).
In the 1950s and 60s, Natives saw the success of African Americans’ nonviolent resistance and applied their strategies to their own cause. Fish-ins featured Natives fishing in forbidden places or ways, in an effort to regain their rights. Fish-ins occurred in cities and on rivers, sometimes drawing the support and participation of famous people. People such as actor Marlon Brando and Episcopalian Canon Jon Yaryan fished with Natives, speaking for the cause when arrested. State enforcers arrested the Natives, and there were increasingly numerous attacks on Natives by sports fishermen, commercial fishermen, and even police officers (Cohen 73).
In 1965, game wardens raided Frank’s Landing, a spot where Bill Frank Sr. and Bill Frank Jr. lived with their children and grandchildren. In October, game wardens first spilled a boat, then attempted to raid the landing, and finally tried to arrest the Natives for illegal fishing (Johnson), resulting in a “pitched battle,” as reporter Robert Johnson put it, of paddles, sticks, stones, flashlights, and clubs. Even before these events, wardens had chased Natives up and down the river and hid in the bushes, looking for activity.
The United States government joined 14 plaintiff tribes in suing the State of Washington on behalf of the fishing losses and treaty violations. The Ninth Federal District Court heard the case of United States v. State of Washington, and handed down what has commonly been called the Boldt Decision in 1974. A triumph for the tribes and their way of life, the Boldt Decision changed Natives’ fishing rights forever.
Judge George Boldt considered two main issues in making his decision, and classified them as phases in the case: (1) whether Natives had greater rights to fish off-reservation than did non-Natives; and (2) whether Natives had any claim to hatchery-bred fish, as Stevens did not mention these in the treaties because they did not exist at the time. Judge Boldt did not consider either Natives’ rights to fish on reservation (Pevar 216), or Natives’ rights to fish off-reservation on the same terms as non-Natives.
The different groups involved in the dispute took three main positions. The Washington State Department of Game’s argued for Natives to have no more rights than whites, and none to steelhead. The “Fair Share” position, made by the Washington Department of Fisheries, would have guaranteed Native fishermen a third of the fish traveling through their usual and accustomed places. This position was fair when considering relative population bases. The position taken and argued by the Natives would have given them enough to meet their needs and to build an economic base, and define how much that was.
Boldt undertook a re-interpretation of the Native treaties, issuing his final decision on February 12, 1974 (“Indians Coast Upheld in Fishing,” 1). Judge Boldt decided that “in common with” meant that Natives should be entitled to catch up to 50 percent of off-reservation catches (IiC “Fish…” 2). Judge Boldt decided that Natives could fish for hatchery bred fish, as long as they helped to breed the fish. The court decided that at the time the treaties were negotiated, people considered steelhead trout no different from salmon. This defeated the Department of Game’s argument that steelhead trout had been classified as a game fish restricted to licensed sports fishermen ("U.S. vs. State…” 399).
For Natives in Washington, the Boldt Decision split tribes into three basic categories (IiC “Tribes…” 2): the plaintiff tribes, the non-plaintiff benefiting tribes, and the non-benefiting tribes. All of the tribes which benefited had signed one or more treaties (U.S. “Boldt” 1). Non-treaty tribes gained no benefit.
The Boldt Decision changed Natives’ rights — and not only in theory. When Washington State sought reversal of Boldt’s decision in the United States Supreme Court, the Court dismissed the appeal (“December 1978-February 1979” 1). With the backing of the Supreme Court, Boldt had created strong legal precedent. And in his landmark decision, Judge Boldt told law enforcers to make sure that these new laws became concrete. Boldt’s decision forced the people who had beaten, robbed, and arrested the Natives to work with them to manage the fisheries, even though some white fishermen were given immunity (George). Before the decision, all but the tribes with a river running through their reservation had been banned from fishing. Even to start fishing again, tribes had to prove where they had previously fished (Charles).
In 1974 tribal fishermen established the Northwest Indians Fisheries Commission, (NWIFC) to represent 19 tribes soon after the Boldt Decision. It has members from tribes ranging all over Washington, including the Suquamish and Port Gamble S’Klallam. The NWIFC has destroyed myths about native fishing and chronicled events under the leadership of Bill Frank Jr.
The Boldt Decision changed white fishermen’s lives and incomes for the worse. Their share of the catch has declined dramatically in the years since the Boldt Decision. Before the decision, white fishermen had 95 percent of the catch. Afterward, in 1983, they only had 56.2 percent of the catch, showing that the Boldt Decision has indeed caused an impact, not just created a standard (Cohen 94).
But with greater rights to exercise, the Natives have greater responsibilities as well. In the first few years after the Boldt Decision, there was not much change besides a little more fishing. But, as the negotiations went on, tribes started up fish hatcheries and enhancement centers, though under no legal obligation to do so (Freedman), and hired staff who specialized in areas that would help them move forward (Zischke). Even today, the questions are being asked: Can native treaty rights can prevent any land that might affect salmon runs from being developed? What does the treaty right mean if the fish run out?
Whites and Natives have argued over Native fishing rights since Isaac Stevens negotiated the first treaties in 1855. Disagreement and tragedy for the tribes continued through the twentieth century in many forms. Though the triumph of the 1974 Boldt Decision has not ended the conflict between whites and Natives over this issue, it has given Natives back most of their rights, provided definitive legal precedent to support them, and secured for the Natives the backing of the United States Government.
WORKS CITED Primary Sources
Charles, Ron. Personal interview. May 7, 2007.
Mr. Charles is the Chairman of the Port Gamble S’Klallam Tribe, and also fished for twenty five years before and after the Boldt Decision. He corrected some mis-understandings from the native perspective, such as that Bill Frank Jr. did not, as I had assumed, participate in the founding of the NWIFC.
Freedman, Bart. Personal interview. May 10, 2007.
Mr. Freedman is an attorney who specializes in this area of litigation. His law partner is Slade Gorton who was the Attorney General who argued the Boldt Decision for Washington State. Mr. Freedman helped me to gain the perspective of the non-native’s position, assisted in my classification of the cases, clarified what the tribes are legally obligated to do, and described the direction that case law is taking today.
George, Ted. Personal interview. May 15, 2007.
Suquamish and Port Gamble S’Klallam Tribal Elder Ted George gave me a look at the big picture behind the fishing rights issue. He also told me about the horrific boarding schools where his parents were forced to attend, he described the General Allotment Act that parceled out the natives’ land, and he gave me an overview of his tribes’ culture prior to contact with white settlers. He has been on presidential committees including the National Advisory Council on Indian Education, the Indian Education Task Force, and has been a Commissioner of Indian Affairs.
Indians into Communications. “Synopsis Fish Decision Summary.” Northwest Indian News 1979:2.
“Synopsis Fish Decision Summary,” gave me a good understanding of the Native’s positive perception and beliefs about the Boldt Decision.
Indians into Communications, Inc. “Tribes which Benefit from the Court Decision.” Northwest Indian News 1979:2.
“Tribes which Benefit from the Court Decision,” gave me a much better understanding of which tribes benefited, which were plaintiffs, and which might benefit from the decision.
“Indians on Coast Upheld in Fishing.” New York Times. 13 February 1974.
“Indians on Coast Upheld in Fishing,” gave me an idea of facts at the time of the event in addition to precise dates and important numbers.
Johnson, Lawrence, dir. Remembering Medicine Creek. Videocassette. Lawrence Johnson Productions, Inc, 1998.
Remembering Medicine Creek was interesting because much of it was an interview with Bill Frank Jr., a key participant in the time around the Boldt Decision, who explained much about the Frank’s Landing attack.
Northwest Indians Fisheries Commission. “The Truth About Indian Fishing.” NWIFC News 1987: 6-7.
“The Truth About Indian Fishing,” showed what natives believed years after the Decision. It also showed what whites thought about the whole thing, such as they thought that natives caught hatchery fish but did not help to produce them.
Northwest Indians Fisheries Commission. NWIFC News December 1978-Feb. 1979: 1
The December 1978-Feb. 1979 issue of the NWIFC News showed native opinions a few years after the Decision, still positive as they fished more and more, and it also gave opinions on the follow-up case, such as that the Supreme Court rightfully turned down Washington’s appeal.
Stevens, Isaac. “Treaties made at Walla Walla Valley, June 9, 1855.” University of Washington Special Collections. Box 7/20, Isaac I. Stevens Papers.
This source gave me an idea of what issues were addressed in treaties and what format/style was used, such as the lines of signatures at the bottom. Unlike the Constitution, the signatures were organized into columns.
Treaty Indian Fisheries and Salmon Recovery. Videocassette. Northwest Indians Fisheries Commission, 1999.
Treaty Indian Fisheries and Salmon Recovery gave me a first-hand look at methods for catching salmon, lies refuted, and what is being done to save the salmon.
United States. “Boldt Decision.”12 February 1974. 7 January 2006. <http://www.ccrh.org/comm/river/legal/boldt.htm>.
This site gave me the full text of the Boldt Decision from a third party. It was long, but it gave me an idea how many people this helped.
United States. United States V. State of Washington: United States District Court, Western District of Washington. St. Paul: West Pub. Co., 1986.
This book, with misleading page numbers, gave me the Boldt Decision in book form, and gave me an idea of the language used.
Zischke, Jay. Personal interview. 26 February, 2006.
Mr. Zischke gave me a general overview of the topic after I had researched it. He works for the Suquamish Tribe as the Marine Fish Program Manager. He filled me in more on what happened immediately after the treaties, and more about the treaties themselves. He also gave me more knowledge of the salmon hatcheries, and information about shellfish rights. He has also given me better understanding of where the effects of the Boldt Decision are to this day.Secondary Sources
Cohen, Fay G. Treaties on Trial. Seattle: University of Washington Press, 1986.
Treaties on Trial was by far my most useful source. It gave me a broad overview on all of the matters involved.
Deloria, Vine, Jr., and David E. Wilkins. Tribes, Treaties, & Constitutional Tribulations. Austin: University of Texas Press, 1999.
Tribes, Treaties, & Constitutional Tribulations gave me a good idea of the treaties and their follow-up movements and how the government treated natives.
Harmon, Alexandra. Indians in the Making. Los Angeles: University of California, 1998.
Indians in the Making, though not directly on my topic, gave me a sense of some of the cultural changes involved.
Pevar, Stephen L. The Rights of Indians and Tribes. Carbondale: Southern Illinois University Press, 2002.
The Rights of Indians and Tribes told me in no uncertain terms what rights natives (nation wide) hold today, and especially rights to hunt and fish.
Porter, Frank W. The Coast Salish Peoples. New York: Chelsea House Publishers, 1989.
The Coast Salish Peoples gave me a general overview of many of the tribes involved in the Boldt Decision, and their lifestyles.