The Boldt Decision - Salmon and tribal fishing rights

By now most of those who are involved with or reporting on Klamath Salmon issues know at least the basic outline of the Klamath River Salmon Wars of the 1970s. If you don't know that history, the best retelling available was written by legendary Klamath Biologist Ronnie Pierce and is available on-line for download. The war - real guns were fired on all sides and armed federal marshals were deployed - raised such a stir that it was reported at length in Sports Illustrated.

Yurok fishers take salmon by drift net at the Klamath River's mouth

But you may not know that the Klamath Salmon War was part of a larger struggle of Indigenous Northwest and California Native peoples to preserve their rights to fish for salmon as they had done for time immemorial. In the 1970s state fish and wildlife departments - supported by the federal government -  moved to terminate and wipe out all vestiges of traditional Indigenous salmon fishing. At the time no one thought that the rag-tag groups of Native fishermen would prevail...including most of the fishermen themselves and their families. They had forgotten or had never known the words of anthropologist Margaret Mead:
          Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.

The struggle over salmon fishing spawned hatred, violence and major federal court cases. The Indigenous Natives prevailed and the main resulting court decision - the Boldt Decision - has governed the allocation of salmon among Native, sport and commercial salmon fishers ever since. The Boldt Decision, for example, was the basis for the decision by Interior Secretary Bruce Babbitt to allocate 50% of the allowable Klamath River salmon catch to the Yurok and Hoopa Tribes. Ironically, other Klamath River Indians who also depend on salmon - including Yurok members of the Resighini Rancheria and Karuk members of the Karuk Tribe and Quartz Valley Tribe - do not have government recognized fishing rights. These folks must still fish at night and risk prosecution to exercise their aboriginal right to fish for salmon in a traditional manner.

My guess is that most of those involved in Klamath River and Klamath Salmon issues these days do not know the history of the Boldt Decision. So KlamBlog offers the article below from the February 7, 1999 issue of the Seattle Times newspaper.

Those who understand history and its patterns have an advantage navigating the present. This is particularly true for those who are involved in political movements and social controversies. We have that now on the Klamath. While the political and social struggles still center on salmon, the antagonists now are those who seek to control Klamath River water and its management as well as those who own dams and those who seek to remove them.

Learn the history, it will help you find the right road today.
http://www.kohary.com/env/bill_020799.html

25 years after the Boldt Decision: The fish tale that changed history
by Alex Tizon
Seattle Times staff reporter

Billy Frank Jr. may be the most distinguished person you'll ever call Billy. He'll insist on it. Call him Mr. Frank and he'll look around for someone else. Say "Hi Billy," and a meaty brown hand will be instantly extended to you.

He's got fisherman's hands. At 67, he's considered an elder statesmen for his people, with governors and U.S. senators among his friends. He's collected awards for humanitarianism. Above all, though, Billy Frank is a Nisqually Indian, which is to say, a fisherman.

If you're a newcomer - one of the 2 million people who've come to Washington since the mid-1970s - you may not know this old fisherman's story.

It's a fish tale, except it's all true and involves more than catching a fish. The fate of Indian tribes and the future of a once-rich industry hung in the balance. Race, politics and Marlon Brando came into play. In the end, a major shift in power took place, permanently changing the status of Indians in the United States.

In the middle of it all was a conservative, white, bespectacled judge named George Hugo Boldt who, 25 years ago this week, handed down the mother of all fish decisions. The ruling shocked the region, and the repercussions - and resentments - continue still.

"The fishing issue was to Washington state what busing was to the East," says former U.S. Congressman Lloyd Meeds of Everett. "It was frightening, very, very emotional."

As in any good tale, there were good guys and bad guys, and for most of the story, Billy Frank was considered a bad guy. He was arrested more than 40 times over three decades. He was branded a renegade by then-Gov. Dan Evans.

His whole tribe was viewed as a band of outlaws, as were all Indians who dared defy the state.

For most of this century, white society did not look kindly upon Indians, when they looked upon them at all. They were viewed as a nuisance, a hindrance to progress. In the Northwest, tribes were widely seen as poaching communities - lawless, primitive, skulking around in the dark.

"The Indian was a child and a dangerous child," wrote a Washington state Supreme Court justice in 1916. "Neither Rome nor Britain ever dealt more liberally with their subject races than we with these savage tribes, whom it was generally tempting and always easy to destroy."

This was the world Billy Frank grew up in.

Of course, he never saw himself as a poacher. To be an Indian in the Puget Sound was to have salmon swimming in your veins. If you let Billy Frank tell the story, he might go back a few thousand years through a hundred generations of Nisqually fishers.

"For context."

He's squarely built with gray hair pulled back under a scruffy wool cap. He wears bifocals. His face is lined and leathery with the look of history about it. And the man can talk. Stories spill out easily, and those meaty hands always seem to be expressing something.

He swears a lot, mostly out of exuberance. "Goddamn, it's a beautiful day!" he might say. When he talks about "the mountain," he's referring to Mount Rainier. "The river" means the Nisqually River.

He's lived his whole life in the 78 miles between the mountain and the river's mouth, and that's where he's headed now, with two guests, in his 17-foot aluminum boat.

The trip from his house to the mouth of the river takes 20 minutes. Harbor seals and sea lions pop their heads out of the water as the boat passes. Three-quarters of a mile upriver, just before the old Pacific Highway bridge, Billy Frank points to a gravel bar on the opposite bank.

"The first time, I was cleaning fish right there," he says.

He recalled it was a cold December night, just before Christmas 1945. He was 14. He had just emptied his net of a load of chum salmon and was working on his knees in the dark when two bright lights flashed on him.

"You're under arrest," a voice said. The boy ran and stumbled. Two game wardens took him by the arms.

"I told them to leave me alone. I live here!"

Today he can point to dozens of spots along the river and tell like stories: of having boats and nets confiscated, of being chased and tear-gassed, tackled, punched, pushed face-first into the mud, handcuffed and dragged soaking wet to the county jail.

Like his father before him, Billy Frank lived like an outlaw, fishing at night and always on the lookout for men in uniforms. Indians all over the Northwest lived the same way.

When brought to court, their sole defense was that they had a right to fish according to century-old treaties signed with the U.S. government.

"Most of them didn't have lawyers," said Al Ziontz, a Seattle attorney who came to represent several Northwest tribes. "The Indians would cite the treaties, and the state would brush them aside, acting like the treaties were just pieces of paper that somebody found in a trunk."

The irony was that those pieces of paper were never the Indians' idea; they were imposed by a fair-skinned people too powerful to fight. Eventually, the squiggly words on those pages would be the Indians' only weapons.

Billy Frank maneuvers his boat into a muddy creek just west of the river. Carcasses of spawned-out salmon line the banks. A quarter-mile up the creek, he points to an isolated Douglas fir, now a snag, rising a hundred feet into the air. Interstate 5 roars a short distance away.

"Treaty Tree," he says, expressionless.

Under that tree, in 1854, the process began ending life as the 6,000 Indians of the region had lived it for thousands of years. Billy Frank's grandfather, Kluck-et-suh, was a boy at the time, and played under that tree and fished this water, then called Medicine Creek.

Working on behalf of the U.S. government, Territorial Gov. Isaac Stevens, a stump-sized, single-minded dynamo of a man, negotiated a rapid-fire series of treaties with the region's Indians for the sole purpose of taking their land so white settlers could move in.

Starting with the Medicine Creek treaty signed under that 100-foot Douglas fir, Stevens pushed through six treaties in two years. The Indians lost most of Western Washington seemingly overnight. They were forced onto reservations, some as small as a few hundred acres.

"Isaac Stevens saw treaty-making as a command-and-obey process, not a negotiation," writes author and University of Colorado law professor Charles Wilkinson in an upcoming book, "Messages From Frank's Landing." "He knew what he wanted going in and did not plan on departing from his script."

The treaty at Medicine Creek was typical.

The two-page document was written in advance, in English, and presented to the Nisquallys, Squaxins and Puyallups, who knew little English. Stevens then insisted the talks be conducted in Chinook jargon, a mixed tongue of English, French and Indian words used for trade.

Asks Wilkinson: How could the Indians possibly know the transcendent meaning of what they were signing?

One interpreter at Medicine Creek, asked by Stevens whether he could get the Indians to sign, assured the governor, "I can get these Indians to sign their death warrant."

The treaties might have been that for the Indians had it not been for a clause in each of them guaranteeing tribes the right to fish ". . . at all usual and accustomed grounds and stations."

Stevens had no qualms about Indian fishing. Fish and game were abundant to the point of seeming limitless. What did it matter? If anything was to become extinct, it would be the Indians themselves.

"Essentially, they hoped we'd all die off," said Joe Waterhouse, a Jamestown S'Klallam Indian and a student of treaty history.

Many tribes came close. Smallpox, random violence and relocation devastated Billy Frank's tribe. Nisqually numbers fell from 2,000 in 1800 to fewer than 700 by 1880. Their chief, Leschi, a charismatic leader who led a rebellion against Stevens, was hanged at Fort Steilacoom.

And their reservation grew smaller and smaller as the needs of the new state of Washington expanded.

By the turn of the century, the Nisquallys, like other Puget Sound tribes, clung to the single-most-important thing they had left from their ancient culture: their relationship to the salmon of the rivers.

The salmon fed them physically and spiritually and brought in what little money they had. Access to the rivers meant everything.

Salmon suffer, Indians blamed

In the first year of statehood, 1889, legislators, in the name of conservation, closed six rivers to salmon fishing. All were Indian fishing grounds. The state eventually banned net fishing in all rivers, except the Columbia, effectively outlawing the Indians' main way of catching fish.

Over the next 50 years, the number of white commercial fishermen exploded, industrializing the fisheries and prodding the state to come down harder on the Indians, now seen as competitors.

Non-Indian commercial fishers caught salmon by the millions of tons in the Pacific and Puget Sound, but the state blamed declining fish runs on Indian netting and lawlessness. The Indians didn't follow state-mandated seasons, didn't get licenses or heed catch limits.

Tribes claimed the real culprits in the salmon's decline were commercial fishing, dam-building and logging. Decades of research would eventually corroborate this.

In reality, Indians, still river-fishers, caught only what was left over. According to the state's own figures, Indians were catching less than 5 percent of the harvestable salmon in the region at the height of the fish wars.

Even to catch that, "we had to go underground," Billy Frank says. "To survive, to continue our culture, we had to become an underground society."

By the 1960s, the state's sporadic arrests turned into a relentless series of raids and stings, much of it focused on the Nisqually River. The river had become the locus of Indian protests.

Revolution was in the air all over the country, and Northwest Indians, seizing the "sit-in" tactics of civil-rights activists elsewhere, began staging "fish-ins," in which protesters would openly fish in defiance of state laws.

One of the "renegade leaders," as the state labeled him, was a crew-cut, hell-raising Nisqually Indian named Billy Frank, son of Billy Frank Sr., himself a veteran of the fish wars. Many fish-ins took place on the family's 6-acre riverfront parcel known as Frank's Landing.

The Landing became the moral center of the resistance.

`A getting-arrested guy'

Billy Frank was no longer the frightened 14-year-old arrested upriver in 1945. He'd worked all over, struggled with and overcome a drinking problem, married and fathered children. He'd spent two years in the Marine Corps and saw enough of the world to know right from wrong. But with only a ninth-grade education, he didn't see himself arguing fine points of law.

"I wasn't a policy guy. I was a getting-arrested guy," he likes to say.

The state responded to the fish-ins with a military-style campaign, using surveillance planes, high-powered boats and radio communications. At times, game wardens resorted to tear gas and billy clubs. And guns.

The confrontations were telecast nationwide.

Soon a parade of celebrities came to support the Indians, the most famous among them, Marlon Brando and Jane Fonda. When Brando was arrested during a 1964 fish-in on the nearby Puyallup River, he told reporters he was just "helping some Indian friends fish."

The violence escalated. The state became more aggressive, and Indians fought back, using fists and stones.

Billy Frank recalls an incident in which a state boat rammed his prized canoe - carved by an Indian friend up river, Johnny Bob - dumping him in the water. Billy almost drowned. The state confiscated the canoe.

Indian activist Hank Adams was shot in the stomach while fishing, but survived. He claimed the assailants were white vigilantes, but police never pursued the case.

"It was a frightening time," said former Congressman Meeds, whose district included Everett and the San Juans, white fishing strongholds.

Meeds, 71, once highly popular, saw his constituency turn against him for his early support of the tribes. He decided not to run for a seventh term when it became clear he would lose. Other lawmakers felt similar pressure.

In one of the most dramatic raids of the fish wars, this one in September 1970, a squadron of helmeted Tacoma police used tear gas and clubs to arrest 59 protesters camped on the Puyallup. Gunshots were fired, and Indians were beaten and brutally manhandled.

That same month, the U.S. government finally intervened. The government, on behalf of the tribes, filed suit against the state of Washington. After all, it was the government's own documents - those pieces of paper pushed by Isaac Stevens and ratified by Congress - the Indians constantly invoked.

Assigned to hear the case was U.S. District Court Judge George Hugo Boldt.

Billy Frank remembered the name. Six years earlier, Billy and five friends had spent 30 days in jail for staging a fish-in. Their attorney tried to free them on grounds of illegal arrest but failed. One of the judges who denied their release was George Boldt.

The trial

What else was known of Boldt was not encouraging for the tribes. He was in his late 60s, an Eisenhower appointee and a conservative with no background in Indian law. Most worrisome was the native Montanan's reputation as an avid sport fisherman.

Sport-fishers as a group blamed Indians for the drop in steelhead runs.

Over the next three years, Boldt presided over a highly complex trial with a law-and-order firmness, but not without charm. Retired Times reporter Don Hannula, who followed the trial, tells of a witness who described the thrill of landing a steelhead trout:

"If you've ever made love - that's the nearest I can express it," the witness told the judge. Asked where he fished, the witness clicked off a long list of rivers. Judge Boldt, peering above his horn-rimmed glasses, replied: "That doesn't leave you much time for making love, does it?"

Make Love, Not War was the slogan of the times, but what followed both in and out of Boldt's courtroom was a classic Western showdown.

Outside were pickets and hangings in effigy. Inside, lawyers debated the central question: Could the state of Washington regulate the fishing practices of Indians who signed treaties with the U.S. government?

But the underlying question was more far-reaching: To what extent could tribes, as separate nations within a nation, rule their own people and control their own destinies?

Both sides relied on the treaty clause that read, "The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the territory."

The state interpreted the words "in common with all citizens" to mean that Indians, like all other residents of the state, must be subject to state control. The Indians argued the treaties entitled them to fish unimpeded at any of their "usual and accustomed places."

Testifying at the trial were Indians young and old, like Billy Frank and his father, who told stories passed on to them by their fathers and grandfathers. They talked of the time before white people came, and of the generations of Indian fishers that went back, according to the their view, to the beginning of time. For context.

"He listened to us," Billy Frank says of the judge, in what may be his highest praise. "He listened very carefully."

On Feb. 12, 1974, Judge Boldt handed down his 203-page decision.

The Indians won. Overwhelmingly.

Boldt, relying on an 1828 edition of Webster's American Dictionary, interpreted "in common with" to mean the Indians were entitled to half the harvestable salmon running through their traditional waters. Fifty percent! The ruling shocked even the Indians, who made up only 1 percent of the state's population.

Furthermore, Boldt made the tribes co-managers of the state's fisheries. With the drop of a gavel, tribes transformed, in the eyes of the law, from underground poaching societies to at-the-table equals with the state authorities that had persecuted them for so long.

Acrimony still festers

The ruling stuck. It withstood years of sometimes-violent protest by non-Indian fishermen. It withstood state appeals argued doggedly by then state Attorney General Slade Gorton. The Court of Appeals and eventually the U.S. Supreme Court upheld Boldt's decision.

A decade of tumultuous adjustments passed before the Indians started harvesting their 50 percent. The state and the tribes eventually learned to work together, the tribes represented by the Northwest Indian Fisheries Commission, of which Billy Frank has been chairman for almost 20 years.

The 50-50 formula was extended to shellfish and game, but not without rancorous opposition.

Many non-Indian fishermen still resent Boldt, still curse him and the tribes. And a whole new group, waterfront property owners - angered by court-approved Indian harvesting of shellfish on their tidelands - have joined the campaign to roll back what Boldt unfurled.

"Boldt made a bad decision," said Tom Nelson, 61, of Renton, and a leader in the sport-fishing community. "Most people in the state - and I go around speaking to a lot of groups - think Boldt made a bad decision."

Nelson's sport-fishing group wants to put a "Ban All Nets" initiative on the November ballot. Though it wouldn't immediately affect tribes, observers say tribes are the ultimate target. Up to 80 percent of all net-fishing in Puget Sound is done by Indian fishers.

Salmon continue to decline. Despite its mandate to better manage the state's fisheries, Boldt didn't save them. No court decision could. Fisheries all over the world are in crisis for the same reason: too many people fishing, polluting and destroying habitat. Or simply too many people.

"The number of fish dropped while we were in the courtroom arguing over who got the fish," said David Getches, lead tribal attorney in the Boldt case.

Most tribes are still poor.

But the Boldt decision reverberated throughout Indian country because, in symbol, it had less to do with allocation of fish than with allocation of power. It elevated tribal treaties to at least the level of state law, and gave Indians a new political status.

Boldt was a great boost in the direction of tribes ruling themselves. It coincided with a Nixon-era infusion of federal money intended to strengthen tribal governments.

The result has been both a political and economic awakening, seen in arenas as divergent as tribal casino resorts in Connecticut, tribal police powers in New Mexico and online tribal lotteries in Idaho.

Tribes nationwide have become a force to be reckoned with.

In Washington, the Muckleshoot tribe held up a city of Tacoma plan to build a pipeline along the Green River, ancestral fishing grounds. The project went through but only after Tacoma agreed to pay the tribe $20 million, build a tribal fish hatchery and hand over 100 acres.

In Utah, the Goshute Indians, over the vitriolic objections of its non-Indian neighbors, plan to lease part of their reservation for nuclear-waste storage. The tribe, hoping for a multimillion-dollar boon, says it's their right as a sovereign nation.

In New Mexico, the city of Albuquerque has agreed to spend $300 million on cleaning up the Rio Grande River to meet the water-quality requirements of the Isleta Pueblo, which manages part of the watershed.

International acclaim

"Without question, the Boldt decision is among the one, two or three most-significant decisions in the history of Indian law. It was that profound," said author Wilkinson.

"And Billy Frank was the heart and soul of it. He was the image of the defiant Indian standing up for something that was right and true."

After a long day of showing his two guests around the river, Billy Frank's boat runs out of gas. It stalls, and is carried swiftly downstream on a powerful current. The boat spins once, twice. And from out of Billy's mouth comes a noise that sounds like "Yee-haaaaw!"

He grabs a paddle, and eventually guides the boat steadily downriver to Frank's Landing. "We made it," he says with mock drama. "We're safe!"

For him, it was just another hairy ride on the river, as his whole life has been. He's traveled an extraordinary distance.

From skulking in the rivers, he and his people have come to oversee them. Instead of arrest warrants, he gets invitations to speak - to this congressional panel or that Senate committee, to the world conference of Amnesty International.

He's been awarded the Albert Schweitzer Prize for Humanitarianism, joining past winners, former President Jimmy Carter and former U.S. Surgeon General Dr. C. Everett Koop.

But his most prized acquisition has been the old shovel-nosed canoe that his friend Johnny Bob carved 40 years ago and for which Billy paid him 15 salmon - the one state wardens confiscated after ramming him in the river in 1964.

In a gesture of reconciliation, the state gave it back to him for his birthday in 1980. Then, a few years ago, a massive flood carried it away, and Billy lost it again. But it came back, this time returned by a niece who found it downriver.

The canoe now hangs ceremoniously from the ceiling at the new We He Lut Indian school on the Landing. Billy Frank and his two guests study it.

He tells its story and unwittingly sums up his own life. He says it was formed by old hands in the backwoods of the Nisqually, that it began in the river and will end there, and that it's surprised everyone with its resilience.

"There it is," he says, "still here."

Copyright © 1999 Seattle Times Company