Reaties on Trial the Continuing Controversy Over Northwest Indian Fishing Rights

Treaties on Trial: The... by
Fay G. Cohen

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Start your review of Treaties on Trial: The Continuing Controversy Over Northwest Indian Fishing Rights

Sep 08, 2018 Rob Bauer rated it really liked it

The story is built around the Federal District Court case of 1974 technically known as U.S. v. Washington, but better known in Washington as the Boldt Decision after the judge who handed it down. The events leading up to the Boldt Decision, the reaction to it, and its future impact on fishing in Washington form the heart of the narrative of Treaties on Trial.

The Boldt decision had an earth-shattering impact on everyone involved in fishing in the state. Even today, simply mentioning the Boldt Dec

The Boldt decision had an earth-shattering impact on everyone involved in fishing in the state. Even today, simply mentioning the Boldt Decision to old-timers can draw an emotional reaction. The reason is the Boldt Decision authoritatively interpreted the treaties that had been signed by Washington Territorial Governor Isaac Stevens with various Native American tribes in 1854 and 1855. Recognizing that fishing was a way of life for the tribes in Washington, the treaties guaranteed the Indians the right to continue fishing at their "usual and accustomed grounds." According to the Native American tribes who brought the case against the State of Washington, this right was being violated.

When Judge Boldt ruled in favor of the tribes in 1974, the reaction from both commercial and sport fisherman in Washington was immediate and hostile. Not only did Boldt rule that Native Americans had a right to fish at "usual and accustomed grounds" that were outside their reservations, he also decided that the tribes were entitled to an equal portion of the fish. The treaties entitled them to split the catch fifty-fifty with commercial and sport fishermen. While some commercial and sport fisherman unhappily accepted the decision, others would resist its implementation by various means, legal and illegal. These fishermen took issue with the Boldt decision on many grounds. Cohen nicely summarizes the response by stating:

Added to the years of ill-founded belief that Indians posed a danger to the fish was a perhaps even more threatening view that the Indian treaty right, as affirmed by U.S. v. Washington, presented a danger to the fishing economy of the Northwest. Soon the decision itself came to be blamed for what was really a long-standing problem of too many fishermen chasing too few fish." (16)

The reasons why there are too few fish are clearly explained by Cohen. Following the exploitative resource use strategies of Western fur traders, bison hunters, and miners, fishermen in Washington exploited the salmon runs with no long-term consideration of the impact on the salmon. The invention of the canning process hastened this extreme exploitation. By 1883, the Columbia River and tributaries had 55 canneries, and Puget Sound had several canneries of its own. The canneries and other fishermen caught fish using gill nets, purse seines, fishwheels, and traps. One fishwheel caught 209 tons of fish in 1906. The 1920s saw the rise of sport fishermen, who decreased salmon and steelhead populations with their activities. Dams also wreaked havoc on fish populations. There were 300 of them in the Columbia Basin by 1948. The most extreme example of the devastation to salmon caused by dams is Grand Coulee Dam in North Central Washington. When completed in 1941, Grand Coulee had no fish passage facilities. This effectively closed 40 percent of the Columbia River watershed spawning grounds to salmon forever. Even for dams with fish passage facilities, fifteen percent of young fish on their way downstream die at each dam, due primarily to nitrogen supersaturation and disorientation. Logging also hurt the salmon by polluting rivers and changing water temperatures. Washington State responded to these threats to the salmon by building fish hatcheries. To date, Washington's faith in a technological solution has yielded spotty results.

This long-term reduction in fish populations gave rise to fierce competition for those fish that did surmount the many obstacles to their survival. At various times, both the Federal Government (through assimilation policies) and state governments (through various regulations, some ostensibly tied to conservation) attempted to deprive Native Americans of their right to fish at "usual and accustomed grounds." On top of that, the tribes were often blamed for the lack of fish: "Instead of pointing to the overabundant, non-Indian commercial fleet, or to dams, or to habitat destruction as reasons for the paucity of fish, the Seattle Times ran an increasing number of feature stories blaming Indians for poor catches during this period." (71)

This is the situation that led up to the Boldt Decision in 1974. Both sides, Native Americans and commercial/sport fishermen, blamed the other for the diminishing number of fish and there was little chance of compromise. When the Boldt Decision came down against them, some commercial fishermen and their allies chose the path of civil disobedience, fishing illegally for many years. Washington State enforced the Boldt Decision sparingly, if at all. Senators Henry M. Jackson and Warren G. Magnusson, along with State Attorney General Slade Gorton, attempted to use their influence at the state and national level to overturn the decision. The Washington State Supreme Court overturned the Boldt Decision, despite the Supremacy Clause of the United States Constitution. The Boldt Decision eventually went all the way to the Supreme Court, where it was upheld in 1979. It was upheld despite the fact that "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." (100)

The remainder of Treaties on Trial discusses the further implications of the Boldt Decision for fishing in Washington and suggests some implications for the future. This discussion includes events up to 1984, when the book went to print. It describes the Native American struggle to protect the gains made in the Boldt Decision. Citizens of Washington State, led by State Senator Jack Metcalf, placed an initiative on the ballot in 1984 that would essentially overturn the Boldt Decision. The Initiative was passed despite heavy opposition and despite the fact that "The Initiative's central doctrine that a state can override the federal mandate has been found unconstitutional many times. From a practical standpoint, the Civil War settled the issue forever." (185)

The great value of Treaties on Trial is in the description of the legal battle over the treaty rights of the Native Americans of Washington State. Cohen does a commendable job of reducing some complex legal issues to a level that readers can understand. Beyond that, the description of the mammoth struggle of the opposing groups draws the reader into the story. Treaties on Trial could have been a dry legal argument, but the human element is present in force. There are maps to help the reader locate the areas under discussion; they are especially helpful for the difficult geography of Puget Sound. Still, there were a few areas where Treaties on Trial fell short of what it could have been. The final chapters make liberal use of statistics to quantify the size of various salmon runs, the size of fishing fleets, and so forth. But the first half of the book is nearly devoid of statistics that could have strengthened the points made and informed the discussion. In addition, Cohen sometimes states the obvious too frequently. But overall, I found this to be a very informative book that is well written and very accessible to all readers about an important event in Washington state's modern history.

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