Legal milestones for Indigenous sovereignty and salmon co-management in the Puget Sound region

During the years 1854 to 1856, five treaties were signed between the US government and Indigenous Tribes in the Puget Sound region: the Treaty of Medicine Creek (1854), the Neah Bay Treaty (1855), the Treaty of Point Elliott (1855), the Treaty of Point No Point (1855), and the Quinault Treaty (1856) (West Coast Regional Office, 2022). These treaties were signed on behalf of the United States by Isaac Stevens, the Governor of the Territory of Washington and the Superintendent of Indian Affairs (Treaty of Point Elliott, 1855). Under the threat of military action from the U.S. government, each treaty was also signed by Tribal leaders on behalf of their respective Tribes. In these treaties, Coast Salish Tribes ceded the majority of Tribal lands and the use of those lands to the U.S. government. In exchange, the treaties established reservations that were to be used exclusively by Indigenous peoples (Fischer, 2021). Importantly, these treaties also reserved the rights of Tribes and Tribal members to fish “in common” with citizens of the territory (West Coast Regional Office, 2022).

While the treaties were legally binding, the State of Washington consistently violated its agreements with the Tribes and failed to honor many of the elements of the treaties including fishing rights. Conflicts over treaty rights intensified in the 1960s and 1970s when Coast Salish peoples and the State of Washington clashed in the so-called ‘Fish Wars’ over the right to fish for salmon in state waters. State agencies frequently used intimidation and violence to prevent Tribal members from fishing on their “usual and accustomed grounds” (United States v. State of Washington, 1974). Tensions reached a high point in September of 1970, when police “attacked a major fishing camp on the Puyallup River” and arrested 55 adults and five children (Chrisman, 2008).

In response to the violence and infringement on their right to fish, Tribes organized a movement that then galvanized Indigenous people and non-Indigenous allies. This movement culminated in a law suit by the Tribes against the State of Washington in 1974 (Chrisman, 2008). Senior District Judge George Boldt presided over the landmark case, United States v. State of Washington (1974), now commonly known as the ‘Boldt Decision.’ Ultimately, Judge Boldt ruled that Tribes were “entitled to…regulate the treaty right fishing of its members' without any state regulation,” thereby reaffirming Tribes’ rights to fish on their usual and accustomed grounds. By stating the Tribes’ right to fish “in common,” the ruling also asserted Tribes’ rights to take up to 50% of the harvestable number of fish in Washington State waterways. Finally, by confirming the Tribes’ role as co-managers of salmon and steelhead populations with the State of Washington, the ruling also created a significant institutional shift in how fish populations were – and are – managed in the State of Washington (United States v. State of Washington, 1974).

Other landmark rulings followed in the years after the Boldt Decision. Specifically, the Boldt Decision was appealed to the Ninth Circuit Court of Appeals and upheld by the U.S. Supreme Court in 1979 (Chrisman, 2008). In the year following the Supreme Court Decision, Judge William Orrick replaced retired Judge Boldt and presided over the case United States v. State of Washington (1980). In ‘Boldt II,’ as the case is commonly known, Judge Orrick reasoned that if “man-made despoliation created by urbanization and intensive settlement of fishing areas… [were] to continue, the right to take fish would eventually be reduced to the right to dip one’s net into the water … and bring it out empty” (Belsky, quoting United States v. State of Washington, 1974). Ultimately, Judge Orrick ruled that (1) hatchery-bred fish are a component part of total fish harvest and (2) treaty rights include the right to the protection of fish habitat. These rulings affirmed Tribal rights to half of fish, including hatchery-bred fish, and established a legal requirement to protect salmon habitat and avoid habitat degradation (Brown & Footen, 2010).

Decades later, these rulings continue to serve as powerful legal precedents for many contemporary legal battles between Tribes and the State of Washington over Tribal sovereignty and salmon co-management. In the early 2000s, for example, twenty-one federally recognized Tribes leveraged the legal rationale in the Boldt II Decision to argue that the State’s culverts (structures that channels water away from obstacles, often roads) were violating treaty rights by hindering the reproductive and migratory patterns of salmon. The ‘Culverts Case,’ as it has come to be known, saw similar outcomes as the Boldt Decision and Boldt II. Specifically, the Federal District Court again sided with the Tribes and ruled that the State of Washington was violating Tribal treaties by failing to maintain culverts across the state. In 2013, the court required the State of Washington to replace all culverts hindering salmon passage by 2030 (Dvorkin, 2018). 

View the full texts of the five treaties described in this article. 

References

Adams, Han (Producer) & Burns, Carol (Director). (1971). As Long as the River Runs [Motion Picture]. United States: Survival of American Indians Association.

Belsky, M. H. (1996). Indian Fishing Rights: A Lost Opportunity for Ecosystem Management. Journal of Land Use & Environmental Law, 12(1), 45–62. http://www.jstor.org/stable/42842677

Brown, J. & Footen, B. (2010) Pacific Northwest Salmon Habitat: The Culvert Cases and the Power of Treaties. Enduring Legacies Native Cases Initiative, The Evergreen State College. https://nativecases.evergreen.edu/sites/default/files/casestudies/Brown%...

Chrisman, Gabriel. (2008). The Fish-In Protests at Frank’s Landing. The Seattle Labor Rights and History Project. https://depts.washington.edu/civilr/fish-ins.htm

Dvorkin, J. (2018, June 20). MRSC—The Culverts Case: An Overview and Potential Implications for Local Governments. https://mrsc.org/Culverts-Case-Implications-Local-Governments.aspx

Evans & Johnson. (1980). Improper Culverts block fish passage in a variety of ways [Image]. Researchgate.net. https://www.researchgate.net/figure/mproper-culverts-block-fishpassage-i...

Fischer, W. (2021, August 31). Point Elliot Treaty. Historic Marker Database. https://www.hmdb.org/m.asp?m=178806

Norman, E. S. (2017). Standing up for Inherent Rights: The Role of Indigenous-Led Activism in Protecting Sacred Waters and Ways of Life. Society & Natural Resources, 30(4), 537–553. https://doi.org/10.1080/08941920.2016.1274459

Northwest Indian Fisheries Commission (2016). Fisheries Management. Northwest Indian Fisheries Commission. Fisheries Management | Northwest Indian Fisheries Commission (nwifc.org)

Treaty of Point Elliott, 1855 (2021). Governor's Office of Indian Affairs, https://goia.wa.gov/tribal-government/treaty-point-elliott-1855

United States v. State of Washington, 384 F. Supp. 312 (W.D. Wash. 1974). https://wdfw.wa.gov/sites/default/files/2021-12/boldt_decision.pdf

West Coast Regional Office. (2022, July 29). Salmon and Steelhead Fisheries on the West Coast: United States v. Washington. NOAA Fisheries. https://www.fisheries.noaa.gov/west-coast/sustainable-fisheries/salmon-and-steelhead-fisheries-west-coast-united-states-v-washington