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Fish Wars

The Fish Wars refer to a series of protests, arrests, and legal confrontations from the 1960s through the 1970s in Washington state, where Native American tribes defended their treaty-reserved rights to fish for salmon and steelhead against state conservation laws that restricted off-reservation fishing.^[1]^[2]
These conflicts stemmed from mid-19th-century treaties, such as those negotiated by Governor Isaac Stevens between 1854 and 1856, in which tribes like the Nisqually, Puyallup, and others relinquished most of their lands to the United States but explicitly reserved "the right of taking fish, at all usual and accustomed grounds and stations... in common with the white man."^[3]^[4]
As non-Native commercial and recreational fishing intensified in the 20th century, Washington state enacted regulations that effectively curtailed tribal harvesting, prompting civil disobedience actions known as "fish-ins," often led by Nisqually activist Billy Frank Jr. at sites like Franks Landing, which drew hundreds of arrests and national attention amid broader civil rights struggles.^[1]^[2]
The disputes culminated in the federal lawsuit United States v. Washington, yielding the landmark 1974 Boldt Decision by U.S. District Judge George Hugo Boldt, which affirmed the tribes' entitlement to up to 50 percent of the harvestable fish population annually and established shared management responsibilities between tribes and the state to ensure conservation.^[4]^[5]
The ruling provoked immediate backlash, including violent confrontations from non-Native fishermen and political resistance from state officials, but was ultimately upheld by the U.S. Supreme Court in 1979, solidifying tribal co-management as a model for resource governance while highlighting ongoing tensions over declining salmon stocks attributable to dams, habitat loss, and overharvesting.^[4]^[2]

Historical Background

Origins of Treaty Fishing Rights

In the 1850s, the United States government negotiated treaties with Native American tribes in the Pacific Northwest to facilitate white settlement on tribal lands while reserving certain rights for the tribes.^[2] These negotiations, led by Isaac Stevens, the first governor and superintendent of Indian affairs for Washington Territory, resulted in a series of agreements known as the Stevens Treaties, signed between 1854 and 1856.^[6] The treaties ceded millions of acres to the U.S. in exchange for reservations, annuities, and specific resource rights, including access to fisheries central to tribal sustenance and economy.^[7] A standard provision across these treaties secured the tribes' right to fish at their "usual and accustomed grounds and stations."^[8] For instance, the Treaty of Medicine Creek, signed on December 26, 1854, with tribes including the Nisqually, Puyallup, and Squaxin Island, stated: "The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians in common with all citizens of the Territory."^[8] ^[9] This language reflected the tribes' heavy reliance on salmon runs in rivers like the Nisqually and Puget Sound waterways, where fishing had sustained populations for millennia.^[10] Similarly, the Treaty of Point Elliott, ratified on April 29, 1855, and signed on January 22, 1855, with tribes such as the Suquamish, Duwamish, and Snoqualmie, included identical fishing rights language in Article 5.^[11] These clauses aimed to preserve off-reservation access to ancestral fishing sites beyond reservation boundaries, acknowledging the migratory nature of salmon and the tribes' historical practices.^[12] The U.S. Senate ratified most Stevens Treaties between 1855 and 1859, embedding these fishing rights into federal law as solemn agreements between sovereign nations.^[13] The origins of these rights trace to the tribes' insistence during negotiations on retaining access to fisheries, viewed as essential for survival amid land cessions that disrupted traditional territories. Stevens incorporated the provisions to expedite agreements, recognizing salmon's role equivalent to farmland for European settlers.^[14] However, the "in common with" phrasing introduced ambiguity regarding priority during resource scarcity, setting the stage for future conflicts without explicitly granting tribes exclusive or preferential access.^[15]

Evolution of State Regulations and Encroachments

Following the mid-1850s treaties negotiated by Governor Isaac Stevens, which reserved tribal rights to fish at "usual and accustomed places" in common with non-Indian citizens, Washington Territory enacted initial fishing restrictions in the 1870s and 1880s to address depleting salmon stocks amid growing settler populations.^[16] These territorial laws limited methods such as weirs and traps commonly used by tribes, imposing uniform regulations without exemptions for treaty fishers, thereby initiating encroachments on reserved rights under the guise of conservation.^[17] Upon achieving statehood in 1889, Washington formalized its fish and game code through the State Legislature, asserting plenary regulatory authority over all fisheries within state boundaries, including off-reservation tribal sites.^[18] The new laws required fishing licenses, established closed seasons, and set bag limits applicable to Native fishers equally with non-Natives, disregarding treaty language and federal supremacy; state officials enforced these by treating tribal members as subject to state police powers for resource management.^[17]^[19] This framework prioritized emerging non-tribal commercial and sport fisheries, which expanded rapidly with canneries processing over 600 million pounds of salmon annually by the early 1900s, while systematically curtailing traditional tribal practices.^[18] In the early 20th century, state regulations intensified, prohibiting traditional tribal gear like dip nets and set lines while allowing non-tribal hook-and-line and commercial purse seine methods; enforcement targeted Native fishers through patrols and arrests, with state courts upholding such measures as necessary for conservation despite evidence of unequal application favoring white settlers.^[2]^[18] By the 1920s, Washington's Department of Game and Department of Fisheries (merged later) expanded licensing fees and gear restrictions, reducing tribal catches to marginal levels—tribal salmon harvests dropped from treaty-era abundances to under 5% of total state yields— as state policies aligned with industrial interests over treaty obligations.^[17] A pivotal escalation occurred in 1934 with voter-approved Initiative 77, which banned "unlawful" fishing devices including many traditional Native implements, prompting heightened state surveillance of tribal sites and over 300 arrests annually in subsequent years for alleged violations.^[2] State interpretations, reinforced by decisions like the 1957 enforcement of uniform regulations post-assimilation policies, claimed tribes had no immunity from conservation laws, eroding off-reservation rights through cumulative restrictions that ignored the treaties' intent to secure tribal self-sufficiency via fisheries.^[19]^[17] These encroachments persisted into the 1960s, with state agencies issuing quotas and closures that allocated minimal shares to tribes, setting the stage for direct confrontations as non-tribal fisheries dominated 95% of harvests by 1960.^[18]

Escalation of Tensions

State Enforcement Actions Against Tribes

In the early 1960s, the Washington State Departments of Game and Fisheries escalated patrols and regulatory enforcement against Native American tribal members fishing off-reservation in areas claimed as "usual and accustomed grounds" under 19th-century treaties, citing declining salmon stocks and the need for uniform conservation measures.^[20] State agents routinely issued citations for violations such as using unlicensed gillnets or fishing during closed seasons, actions that tribes argued infringed on treaty-guaranteed rights to fish "in common with" non-Indians.^[19] By mid-decade, enforcement had resulted in hundreds of arrests annually, with gear confiscations and boat seizures becoming standard practices to deter off-reservation tribal harvests.^[21] Key incidents highlighted the intensity of these actions. On the Puyallup River in 1964, state police intervened forcefully against tribal fishers at Frank's Landing, employing physical confrontations documented as brutalizing arrests.^[22] In 1969, over 500 officers raided an Indigenous fishing encampment along the same river, leading to 60 arrests amid efforts to dismantle nets and halt ceremonial and subsistence fishing.^[23] The following year, on September 9, 1970, a state-led operation at a Puyallup River camp used tear gas and clubs to disperse fishers, arresting 55 adults and 5 children while destroying equipment.^[1] State officials justified these measures as essential for salmon conservation, pointing to overharvest pressures from all sectors, though enforcement disproportionately targeted tribes despite prior court affirmations of limited treaty rights, such as the Washington Supreme Court's 1957 ruling allowing state regulation only where necessary to prevent depletion.^[24] Tactics occasionally extended beyond citations to sabotage, including reports of agents pouring sugar into boat fuel tanks to immobilize vessels, reflecting a broader policy of criminalizing treaty-based fishing until federal intervention.^[25] These actions fueled tribal assertions of sovereignty erosion, as state regulations effectively barred off-reservation access even as non-tribal commercial and recreational fishing persisted under licensed quotas.^[18]

Tribal Resistance and "Fish-In" Protests

Tribal resistance to state fishing regulations intensified in the 1960s through organized "fish-in" protests, where Native Americans deliberately fished in off-reservation waters in defiance of state laws to assert their treaty-guaranteed rights. These actions, modeled after civil rights sit-ins, involved tribes such as the Nisqually, Puyallup, and Muckleshoot catching salmon in their traditional fishing grounds despite enforcement by state game wardens, often resulting in arrests and clashes.^[21]^[19] The Survival of American Indian Association (SAIA), formed in 1964 by activists including Hank Adams, coordinated many of these protests to highlight the violation of 19th-century treaties that reserved the right to fish in "usual and accustomed places." The first notable fish-in occurred on March 1, 1964, on the Puyallup River, followed by another on March 2 at Frank's Landing on the Nisqually River, led by Nisqually tribal member Billy Frank Jr. These events drew immediate state response, with wardens arresting participants, including Frank, who faced over 50 arrests throughout the decade for exercising treaty rights.^[26]^[27]^[19] High-profile involvement amplified the protests' visibility; actor Marlon Brando joined a March 1964 fish-in on the Puyallup River, where he and others were briefly arrested for catching steelhead trout, though charges against non-Natives were often dropped. Such actions garnered national media coverage, framing the conflict as a civil rights issue and pressuring authorities, with hundreds of arrests across dozens of fish-ins by the late 1960s. Tribal leaders like Frank emphasized subsistence and cultural imperatives, arguing that state restrictions ignored explicit treaty language from agreements like the Medicine Creek Treaty of 1854.^[28]^[29]^[1] The fish-ins escalated tensions but built momentum for federal intervention, as repeated state prosecutions failed to deter tribal fishers and instead exposed the legal inconsistencies of enforcing conservation laws unequally. By 1969, protests at sites like the Puyallup River involved blocking state boats and drew federal observers, underscoring the tribes' strategy of non-violent resistance to compel recognition of off-reservation harvesting rights essential for their economic and cultural survival.^[30]^[2]

Legal Battles

Prelude to Federal Court Involvement

In the 1960s, Washington state intensified enforcement of fishing regulations against Native American tribal members exercising off-reservation treaty rights, resulting in hundreds of arrests for violations such as using gillnets or fishing during closed seasons. State courts consistently upheld these actions under the guise of conservation necessity, as affirmed by the Washington Supreme Court in State v. Satiacum (1957), which recognized treaty-guaranteed rights to fish in usual and accustomed places but subordinated them to state regulations aimed at preserving fish stocks.^[31] This ruling set a precedent for subsequent state decisions limiting tribal commercial fishing, interpreting treaties as permitting only subsistence or ceremonial takes when state authorities deemed broader harvests unsustainable.^[31] The U.S. Supreme Court reinforced this framework in Puyallup Tribe v. Department of Game (1968), holding that states could impose evenhanded conservation measures on treaty fishers, such as method restrictions or seasonal closures, without violating treaty language securing the right to take fish "in common with" non-Indians.^[32] However, tribes contended that state regulations disproportionately targeted their traditional practices to benefit non-Native sport and commercial interests, exceeding mere conservation and encroaching on treaty entitlements explicitly reserved in 1850s agreements like the Treaty of Medicine Creek. State prosecutions continued unabated, with tribal members facing fines, gear confiscations, and jail time, fueling perceptions of systemic disregard for federal treaty supremacy.^[21] Tribal resistance escalated through organized "fish-in" protests, beginning with the formation of the Survival of American Indian Association in 1964 and including a high-profile demonstration on the Puyallup River that March, where actor Marlon Brando was arrested alongside tribal activists to draw media attention.^[21] Clashes intensified, notably at Frank's Landing in October 1965—where state wardens used force against Nisqually fishers—and during extended encampments from 1968 to 1970, culminating in a violent raid on September 9, 1970, at a Puyallup fishing site that destroyed nets and arrested dozens.^[31] These events, amid declining salmon runs partly attributable to non-tribal overfishing and habitat loss, underscored the breakdown of state-tribal negotiations and the inadequacy of piecemeal state court remedies to adjudicate the full scope of "in common with" rights.^[21] Faced with persistent violations of treaty obligations and the risk of further unrest, the U.S. Department of Justice, acting as trustee for affected tribes, filed United States v. Washington on September 18, 1970, in the U.S. District Court for the Western District of Washington, seeking a comprehensive federal declaration of tribal harvest shares and co-management authority to preempt ongoing state encroachments.^[31] This intervention marked a shift from fragmented state litigation to federal oversight, prompted by the federal government's recognition that treaties, as supreme law under the U.S. Constitution, preempted state conservation pretexts that undermined reserved rights.^[4]

The Boldt Decision and Its Core Rulings

In United States v. Washington, decided on February 12, 1974, by U.S. District Judge George H. Boldt, the federal court addressed violations of 19th-century treaties between Washington Territory Governor Isaac Stevens and various Puget Sound tribes, including the right to take fish "at all usual and accustomed grounds and stations... in common with all citizens of the Territory."^[4] The case stemmed from federal enforcement actions against state restrictions on tribal off-reservation fishing, with Boldt ruling that the treaties reserved off-reservation fishing rights that had been diminished by state regulations prioritizing non-tribal commercial and recreational harvest.^[31] The decision's central holding interpreted the treaty phrase "in common with" not as mere equal opportunity subject to state control, but as entitling treaty tribes to up to 50 percent of the annual harvestable surplus of anadromous fish species, such as salmon and steelhead, in their usual and accustomed areas.^[4]^[31] Boldt determined this share based on historical evidence that tribes were the predominant fishers before treaties and that the reserved right preserved a moderate living standard for tribal members, rejecting the state's argument for regulatory supremacy.^[31] This allocation applied only to fish passing through treaty areas en route to spawning grounds, excluding impacts from non-treaty factors like hydropower dams.^[4] Boldt further mandated co-management between tribes and the state for fishery conservation and management, designating tribes as having equal authority with state agencies to regulate their shares while ensuring overall sustainability.^[4]^[31] The ruling enjoined state officials from interfering with tribal fishing except for conservation needs, and it applied to 17 western Washington tribes party to the Stevens treaties, covering waters from Cape Flattery to the Columbia River.^[31] These provisions were affirmed on appeal by the Ninth Circuit Court of Appeals in 1975, solidifying the framework despite subsequent challenges.^[4]

Post-Decision Implementation

Establishment of Co-Management

Following the 1974 United States v. Washington ruling, known as the Boldt Decision, Federal District Judge George H. Boldt mandated a co-management framework for anadromous fish stocks in Washington State, requiring the treaty Indian tribes and the state to jointly manage salmon and steelhead fisheries while allocating 50 percent of the harvestable catch to the tribes.^[4] This arrangement positioned the tribes as equal partners with state agencies in setting regulations, monitoring stocks, and enforcing conservation measures to prevent overfishing, with the court's ongoing supervision to resolve disputes.^[33] The decision explicitly rejected unilateral state control, affirming tribal sovereignty over off-reservation fishing rights derived from 1850s treaties, and emphasized that management authority must prioritize fish propagation and protection before harvest allocation.^[4] To operationalize co-management, the 20 western Washington treaty tribes established the Northwest Indian Fisheries Commission (NWIFC) in 1974 as an intertribal body to coordinate policy, provide technical expertise, and represent tribal interests in negotiations with the state.^[34] The NWIFC developed unified tribal fishing regulations, conducted stock assessments using tribal data collection fleets, and advocated for habitat restoration, thereby building institutional capacity that state officials initially lacked or resisted.^[35] This formation addressed intertribal allocation challenges, such as dividing the 50 percent tribal share among tribes based on traditional fishing grounds, through internal agreements enforced by the commission.^[33] Initial implementation involved court-ordered planning conferences between tribal and state representatives, starting in late 1974, to synchronize seasons, gear restrictions, and escapement goals—defined as the number of fish allowed to spawn.^[4] By 1975, joint management plans covered Puget Sound and coastal fisheries, though compliance was uneven due to state appeals and non-tribal opposition, leading to supplemental rulings like the 1975 affirmation by the Ninth Circuit Court of Appeals.^[4] Over the first decade, co-management reduced unregulated "race fisheries" by introducing quota systems and real-time monitoring, with tribal fleets contributing data that informed annual forecasts; for instance, chinook salmon escapement targets were set collaboratively to sustain runs averaging 1-2 million adults pre-harvest.^[33] Despite early friction, this structure laid the groundwork for data-driven decision-making, contrasting prior state-centric approaches that had depleted stocks through excessive commercial netting.^[36]

Immediate Backlash from Non-Tribal Fishers

Following the February 12, 1974, issuance of the Boldt Decision, which allocated 50% of the harvestable catch of salmon and steelhead to treaty tribes, non-tribal commercial and recreational fishers expressed immediate and intense opposition, viewing the ruling as a direct threat to their livelihoods and established practices.^[31] Commercial gillnetters and sport fishers, whose industries had expanded significantly post-World War II, protested the perceived redistribution of fishing opportunities, with many arguing it ignored conservation needs and prior state regulations.^[37] On March 5, 1974, over 700 sportsmen from regions including Southwest Washington, Everett, Wenatchee, and Spokane marched around the Federal Courthouse in Seattle, carrying signs such as "Sportsmen's rights torn to a shred, screwed by a Boldt, without any thread," along with fishing poles, nets, American flags, and three trailered boats parked outside.^[38] Demonstrators, organized by groups like the Northwest Steelheaders, highlighted economic concerns, with organizer Gary Ellis noting the participation of workers taking a day off as evidence of widespread alarm.^[38] Similar protests occurred in Tacoma, where an effigy of Judge George Boldt was hung outside the courthouse, symbolizing fury over the decision's implications for non-tribal access.^[31] Defiance extended beyond demonstrations, as some commercial fishers ignored the ruling and continued unregulated harvesting, while fish buyers, backed by state officials, refused to provide gasoline or ice to tribal fishers, exacerbating tensions.^[38] Tribal members reported verbal abuse, spitting, and name-calling from non-tribal fishers, with Quileute fisherman Mel Moon recalling such harassment as commonplace in the immediate aftermath.^[38] Judge Boldt himself received bales of hateful mail and was burned or hanged in effigy multiple times, including from a fishing boat, underscoring the personal vitriol directed at enforcers of the decision.^[37] These actions reflected not only economic grievances but also broader resentment rooted in misconceptions about treaty obligations, though the protests drew significant crowds and media attention without immediate violence on the scale of pre-decision conflicts.^[31]

Disruptions to Commercial and Recreational Fishing

The Boldt Decision of February 12, 1974, mandated a 50% allocation of harvestable salmon and steelhead to treaty tribes in their usual and accustomed fishing places, fundamentally altering regulatory frameworks for non-tribal fisheries in Washington state.^[31] This shift enforced stricter state management to preserve stocks for tribal shares, resulting in immediate reductions in non-tribal commercial quotas, shortened fishing seasons, and a 1975 moratorium on new commercial licenses, which curtailed entry into the industry and exacerbated capacity issues amid declining total runs.^[39] Non-tribal commercial salmon revenues fell from approximately $103 million annually in 1970-1971 to $59 million in 1981-1990 (in 2014 dollars), representing an estimated $44 million yearly loss attributable in part to the halved allocation.^[39] Commercial fishers faced operational disruptions from co-management protocols, which prioritized escapement for tribal harvests and imposed gear restrictions, leading to fleet reductions through state buyback programs that retired about 1,500 vessels between 1981 and 2001.^[39] Prior to the ruling, non-tribal entities harvested over 90% of Puget Sound salmon, with tribes taking only 3-6%; the enforced parity displaced small-scale, common-property operations, causing widespread social and economic dislocation as fishermen shifted to alternative fisheries or exited the trade.^[40] ^[41] Backlash manifested in protests and illegal fishing by non-tribal commercial operators, who engaged in unreported harvests to circumvent allocations, further straining enforcement and contributing to overharvest risks that prompted additional closures.^[23] Recreational fishing, dominated by sport anglers in Puget Sound and coastal areas, encountered parallel constraints, including bag limits, seasonal curtailments, and area closures to ensure tribal quotas, which diminished angling opportunities and associated economic activity.^[42] Sport fisheries reported substantial business declines post-1974, as conservation measures to sustain 50% tribal shares reduced available catch amid overall salmon population pressures from habitat loss and ocean conditions.^[43] Persistent restrictions evolved into near-elimination of non-tribal commercial netting in interior marine waters, indirectly tightening recreational regulations to prevent stock depletion, with anglers voicing opposition through organized protests that occasionally escalated into confrontations disrupting access to prime fishing sites. These changes compounded preexisting challenges, leading to reduced participation and revenue for charter operations and tackle industries reliant on open-access traditions. Violence and civil unrest amplified disruptions across both sectors in the years following the decision, with non-tribal fishers retaliating through net-cutting, boat sabotage, and theft from tribal gear, while tribal enforcement of rights sometimes clashed with state wardens, creating unsafe conditions that halted fishing in contested rivers and bays.^[44] Such incidents, peaking in the mid-1970s, reflected acute resentment over perceived inequities, as non-tribal stakeholders argued the ruling upended established livelihoods without commensurate conservation benefits, though total harvest declines were also driven by broader environmental factors.^[27]

Long-Term Effects on Washington State's Economy

The Boldt Decision of 1974, which allocated 50 percent of the harvestable salmon catch to treaty tribes, resulted in a significant transfer of economic value from non-treaty commercial fishers to tribal fishers, estimated at approximately $44 million annually in salmon revenues during 1981–1990 (adjusted to 2014 dollars).^[39] This shift contributed to a contraction in the non-tribal commercial fishing fleet, with federal and state buyback programs retiring around 1,500 vessels between 1981 and 2001 to mitigate overcapacity and quota reductions.^[39] Tribal employment in salmon fishing expanded rapidly, from 1,109 fishers in 1975 to 3,014 by 1982, reflecting increased tribal investment in vessels and gear, though this led to over-capitalization that diluted per-fisher incomes over time.^[39] Salmon revenues for Washington State's commercial sector peaked at $130 million in 1973 (2014 dollars) but declined thereafter, independent of the allocation, due to persistent stock reductions from habitat loss, hydropower dams, and other non-fishing pressures.^[39] The introduction of tribal co-management improved enforcement and data collection but did not reverse the overall harvest downturn, with tribal salmon revenues rising initially to $50.6 million (1981–1990) before stabilizing amid falling runs.^[39] Non-tribal fishers adapted through limited-entry licensing and diversification into shellfish, but the policy's emphasis on equal shares exacerbated competition and reduced incentives for conservation among some participants, contributing to fleet inefficiencies.^[39] Long-term, the decisions fostered a more capital-intensive tribal fishery but yielded mixed outcomes for state-wide economic metrics, as revenue gains for tribes were offset by broader industry contraction and did not proportionally elevate tribal household incomes, per regression analyses of U.S. Census and Washington Department of Fish and Wildlife data.^[39] While the commercial salmon sector, once second only to timber in employment and revenue generation, diminished in relative importance, co-management's regulatory framework supported ancillary benefits like enhanced hatchery programs, though salmon returns remained below historical levels exceeding 50 million fish annually pre-1850s.^[39] The net effect on Washington's economy included localized job losses in coastal communities reliant on non-tribal harvesting, partially alleviated by vessel buybacks, but no evidence of statewide GDP contraction, as fishing comprised a shrinking share of the diversified economy by the 1990s.^[39]

Controversies and Criticisms

Debates Over Treaty Interpretations and Original Intent

The central contention in debates over the Stevens Treaties (signed between 1854 and 1856 with Puget Sound tribes) focuses on the clause reserving to tribes "the right of taking fish, at all usual and accustomed grounds and stations... in common with all citizens of the Territory."^[2] In United States v. Washington (1974), U.S. District Judge George Boldt interpreted "in common with" to mean an equal sharing of the opportunity to harvest fish returning to treaty waters, allocating 50 percent of the sustainable catch to treaty tribes while prioritizing conservation.^[45] This ruling drew on contemporaneous dictionary definitions equating "in common" with joint or equal participation, as well as historical records of negotiations by Governor Isaac Stevens, who viewed fishing as essential to tribal sustenance amid land cessions.^[45] Proponents of Boldt's view, including tribal advocates, argue that the original intent—shaped by tribal chiefs' insistence on perpetual access to salmon, central to their culture and economy—required protecting against future settler dominance, given the small non-Native population at the time (fewer than 5,000 settlers in the territory by 1856).^[2] Negotiations occurred via Chinook jargon, with tribes understanding the clause as safeguarding exclusive cultural practices rather than mere tolerance by incoming citizens, ensuring a "moderate living" through equal allocation rather than access alone.^[45] The U.S. Supreme Court affirmed this in Washington v. Fishing Vessel Association (1979), holding that the phrase guaranteed tribes a fair share of the harvestable resource, not just non-discriminatory access, though subject to state conservation needs overriding treaty shares if necessary.^[46] Critics, including Washington State officials and non-tribal fishing interests, contend that "in common with" plainly signified equal access to fishing locations without preferential allocation, allowing proportional harvests based on effort and investment rather than a fixed percentage.^[37] They highlight demographic realities: treaties anticipated growing settler numbers sharing resources competitively, not reserving half for tribes comprising less than 1 percent of the modern population, a disparity exacerbated by pre-1974 tribal harvests averaging around 5 percent of the total.^[45] Former Washington Attorney General Slade Gorton argued the interpretation distorted treaty language and violated the 14th Amendment's equal protection by granting race-based entitlements over equal opportunity.^[37] Language barriers and cultural mismatches—tribes lacking concepts of private property—further complicate intent, with state positions in litigation asserting the clause permitted nondiscriminatory regulations without guaranteed shares.^[2]^[47] These interpretations reflect broader tensions: tribal emphasis on reserved rights as a bulwark against displacement versus non-tribal focus on plain-text equality and regulatory authority for resource sustainability, debates persisting despite judicial resolutions due to economic stakes in a fishery worth millions annually pre-Boldt.^[37]

Conservation Challenges and Overfishing Allegations

Following the Boldt Decision of 1974, conservation was explicitly prioritized in treaty fisheries management, with harvests allocated only from the "harvestable surplus" after ensuring sufficient escapement for spawning to perpetuate stocks.^[4]^[25] This framework established co-management between Washington State and treaty tribes, requiring joint determination of escapement goals based on empirical data for each salmon run, with total fishing pressure—including tribal, commercial, and recreational—restricted accordingly to avoid overexploitation.^[48] Despite these measures, salmon populations in Washington have faced ongoing declines, with Chinook salmon harvests dropping 58 percent and coho 77 percent since the early 1970s, driven primarily by non-harvest factors such as habitat loss from urbanization, degraded freshwater and estuarine environments, hydropower dams on rivers like the Columbia, and poor ocean survival linked to climate variability.^[49]^[50] Key conservation challenges include failure to meet escapement targets for many stocks, as documented in annual reports from the Washington Department of Fish and Wildlife (WDFW) and the Northwest Indian Fisheries Commission, where actual returns often fall short of goals calculated from historical productivity and current capacity— for instance, Puget Sound Chinook goals range from 36,000 to 152,000 spawners depending on the sub-area, yet many years see underachievement due to upstream barriers and sedimentation.^[48] Tribes and the state have responded by implementing in-season adjustments, such as emergency closures of fisheries when monitoring data indicate risks to brood years, and supporting hatchery supplementation to bolster weak runs while aiming to preserve genetic diversity.^[51] However, critics argue that hatchery reliance introduces risks of straying and competition with wild stocks, complicating recovery under co-management protocols.^[52] Allegations of overfishing by treaty tribes emerged prominently in the post-Boldt era, voiced by non-tribal commercial and recreational fishers who claimed that the 50 percent allocation enabled excessive tribal harvests, particularly via gillnets in terminal areas, thereby reducing spawning escapement and disadvantaging downstream users.^[41] These concerns, echoed in public testimonies during fishery council meetings and lawsuits under United States v. Washington, often highlighted perceived inefficiencies in tribal gear selectivity and assertions that tribes fished in mixed-stock areas without adequate stock-specific data.^[53] For example, in low-abundance years like the 2010s coho crises, some stakeholders alleged violations of conservation principles, prompting calls for federal overrides of treaty shares.^[54] Yet, WDFW and tribal data refute systemic overharvest, showing that tribal catches have proportionally declined alongside overall fisheries—total Puget Sound salmon harvest rates remaining below 20 percent of returns in recent decades—and that pre-escapement monitoring ensures no sector exceeds sustainable limits, with violations prosecuted under joint enforcement.^[52]^[50] Independent reviews, including those by NOAA Fisheries, attribute persistent shortfalls not to harvest but to habitat constraints, affirming co-management's role in curbing exploitation where possible.^[55] Tribes have countered allegations by emphasizing their historical sustainable practices—such as selective harvesting of males to protect females—and leading litigation to address root causes, including the 2007 U.S. v. Washington culvert case, which secured a 2013 injunction (upheld by the U.S. Supreme Court in 2018) mandating the state remove over 300 fish-blocking culverts under highways by 2030 to restore access to 440 miles of spawning habitat.^[56]^[57] This effort underscores causal realism in conservation: while harvest management prevents immediate collapse, long-term recovery demands reversing anthropogenic habitat degradation, a responsibility shared but unevenly addressed across sectors.^[58] Ongoing challenges include balancing ESA-listed stocks' protections with harvest opportunities, as seen in 2024-2025 fishery plans that further restricted openings amid forecasts of weak returns.^[51]

Claims of Judicial Activism and Unintended Consequences

Critics of the Boldt Decision, including Washington state officials and non-tribal fishing organizations, contended that Federal District Judge George Boldt engaged in judicial overreach by interpreting the treaty phrase "in common with" to mandate a precise 50% allocation of the harvestable salmon and steelhead catch to treaty tribes, despite the treaties' lack of explicit quantitative terms and prior Supreme Court precedents emphasizing equal opportunity rather than equal division.^[59] The ruling also imposed co-management obligations on the state, requiring joint conservation efforts and retaining federal court jurisdiction for ongoing enforcement, which opponents argued usurped state regulatory authority over fisheries without legislative warrant.^[59] Groups such as the "Freedom From Federal Judges Fund" explicitly decried the decision as an extension of federal judicial power into local resource management, fueling broader anti-judicial activism sentiments among sport and commercial fishers.^[59] State Attorney General Slade Gorton, representing Washington in appeals, criticized the allocation as disregarding conservation priorities, asserting that it prioritized treaty shares over sustainable yields in violation of the treaties' implicit subordination to resource protection, as articulated in earlier cases like Puyallup Tribe v. Department of Game (1967).^[59] A 1976 Seattle Times poll reflected public skepticism, with 50% of 470 Puget Sound area respondents opposing the ruling's implications for non-tribal access.^[59] These claims persisted despite appellate affirmation by the Ninth Circuit in 1975 and partial Supreme Court endorsement in Washington v. Washington State Commercial Passenger Fishing Vessel Association (1979), which upheld the 50% share but introduced a "moderate living" limit modifiable by tribal needs. Among unintended consequences, the decision precipitated severe economic disruptions for non-tribal commercial and recreational fishers, including widespread vessel idling, license buybacks, and unemployment spikes; by the early 1980s, the allocation contributed to a contraction of the non-Indian fleet amid restricted seasons and quotas.^[41] Within tribes, the shift to capital-intensive offshore purse-seining—enabled by the guaranteed share—enriched a small elite, with 30 treaty vessel owners capturing $6.6 million (about 33% of treaty harvest value) in 1982, exacerbating internal divisions between large-scale operators and traditional river fishers reliant on smaller gillnets.^[41] This commercialization diverged from pre-decision communal practices, fostering social stratification and undermining cultural legitimacy claims, as one tribe alone accounted for roughly 40% of total tribal harvest value that year.^[41] The ruling also intensified lawlessness and conflict, with non-tribal illegal harvests reaching 183,000 fish valued at $1.4 million in 1977 alone, alongside incidents of harassment, blockades (e.g., 75 boats obstructing a ferry in 1978), and violence such as shootings during enforcement.^[59] Critics attributed these outcomes to the abrupt imposition of allocation without adequate transition mechanisms, eroding trust in fisheries governance and prolonging "fish wars" tensions; some tribal members even viewed the fixed 50% cap as a concession that locked in non-Indian shares, limiting potential for fuller restoration of off-reservation rights.^[59] While proponents credit co-management with eventual stabilization, detractors argue the framework's rigidity ignored dynamic ecological and demographic realities, contributing to persistent allocation disputes.^[41]

Legacy and Recent Developments

Subsequent Litigation and Rulings

Following the 1974 Boldt Decision in United States v. Washington, the U.S. Court of Appeals for the Ninth Circuit affirmed the ruling in 1975, upholding treaty tribes' right to 50% of the harvestable salmon and steelhead passing through treaty fishing grounds, as well as their co-management authority with the state. The U.S. Supreme Court denied Washington's petition for certiorari in 1975, solidifying the decision's precedential force. In Washington v. United States, decided by the Supreme Court in 1979, the state challenged the 50% allocation formula, arguing it exceeded treaty language reserving a "usual and accustomed" right to fish. The Court rejected this, holding that tribes were entitled to 45-50% of the harvestable fish based on evidentiary findings, while emphasizing conservation as a mutual obligation under the treaties; it remanded for adjustments but preserved the core allocation.^[46] A 1980 district court subproceeding in U.S. v. Washington extended the allocation to include hatchery-produced fish, ruling that artificial propagation did not exempt them from treaty shares to meet tribes' "moderate living" needs.^[60] The 1990s saw expansion to shellfish rights. In a 1993-1994 subproceeding, the district court ruled that the treaty phrase "right of taking fish" encompassed shellfish, including commercial geoduck harvesting, subject to the 50% allocation and state regulation for conservation; this was affirmed by the Ninth Circuit in 1996, rejecting the state's narrower interpretation limited to finfish.^[61]^[62] Steelhead were explicitly included as treaty "fish" in a 2007 district court ruling, classifying them as anadromous salmonids subject to the 50% share, overturning prior state exclusions based on sport fishery designations.^[63] Habitat protection emerged as a flashpoint in the 2000s. A 2007 district court injunction ordered Washington to repair or replace 300+ culverts under state roads that blocked salmon migration, finding they diminished fish runs in violation of the treaties' implied preservation duty; the Ninth Circuit affirmed in 2016 and 2017, rejecting state arguments against a perpetual duty to avoid habitat degradation.^[64]^[65] The Supreme Court vacated the Ninth Circuit's standing analysis in 2018 but upheld the injunction's validity on remand.^[66] U.S. v. Washington remains an active case with ongoing subproceedings through 2023, addressing enforcement of allocations, hatchery management, and climate impacts on runs, while tribes and the state negotiate amid declining salmon stocks.^[62]^[53]

Current Status of Fisheries and Tribal-State Relations

The co-management regime established by the 1974 United States v. Washington (Boldt Decision) endures in 2025, allocating 50% of harvestable salmon and steelhead to Washington treaty tribes and 50% to the state and non-tribal fishers, with joint oversight of fisheries through forums like the North of Falcon process.^[5]^[67] The Washington Department of Fish and Wildlife approved the 2025–2026 salmon season package on June 16, 2025, reflecting agreements in the List of Agreed Fisheries (LOAF) that incorporate tribal and non-treaty harvest projections for Puget Sound marine and freshwater areas, as well as Columbia River fisheries.^[67] Salmon stock statuses vary by species and region, with many populations constrained by ongoing declines. Puget Sound pink salmon are forecasted to return at 7.76 million adults in 2025, supporting expanded recreational bag limits in areas like Marine Area 9.^[68] In the Columbia River, preseason estimates project 736,200 adult Chinook and 342,100 coho returns, informing federal ocean fishery regulations under NOAA Fisheries.^[69]^[70] However, the majority of Columbia Basin Chinook and other salmon stocks are listed as threatened or endangered under the Endangered Species Act, driving conservative harvest guidelines to prioritize spawning escapement over exploitation.^[71]^[72] Puget Sound Chinook populations similarly face persistent low abundance, with recovery efforts focused on habitat restoration amid hydropower and urbanization pressures.^[72] Tribal-state relations operate within this shared authority, marked by procedural collaboration but persistent tensions over conservation measures and allocation enforcement during weak returns.^[73] A 2024 symposium commemorating the Boldt Decision's 50th anniversary highlighted co-management's successes in technical integration and tribal food sovereignty, yet emphasized challenges like climate-driven ecosystem shifts and the need for mutual accountability in addressing non-harvest threats such as dams and habitat loss.^[73] Tribes maintain advocacy for treaty rights enforcement, including hatchery supplementation and dam removal, while state agencies navigate ESA compliance and stakeholder equities in season planning.^[37]^[73] Overall, the partnership sustains regulated fisheries amid declining baselines, with joint efforts prioritizing stock rebuilding over expanded harvests.^[42]

References

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Treaty and Fishing Rights Activist Billy Frank: the Fish Wars
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Indian treaty fishing rights | Washington Department of Revenue
Indian treaty fishing rights. In Washington state, certain federally recognized tribes and their members have tribal fishing, hunting, and gathering rights.
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The decision gave the tribes who were parties to the treaties the right to half the catch, with the tribes and the state managing the fishery together.
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50 Years of the Boldt Decision | U.S. Fish & Wildlife Service
This became known as the “Boldt Decision,” which affirmed Tribes' treaty reserved rights to half the catch of salmon and steelhead fisheries.Missing: Wars | Show results with:Wars
[6]
[PDF] Treaty Fishing Rights and Indian Participation in International ...
In the Treaties, Stevens gained vast quantities of Indian land for white settlement in exchange for the Indians' continued access to tribal fishing grounds, ...
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[PDF] Indian Treaties as Contracts - Washington State History Museum
A good example of specific treaty rights can be found in the Pacific Northwest treaties that preserved salmon, ocean, and shellfish fishing rights for the.
[8]
Medicine Creek Treaty, 1854 | Nation to Nation
“The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians in common with all citizens of the Territory,” ...
[9]
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On December 26, 1854, the Treaty of Medicine Creek was concluded between the United States and nine western Washington Indian tribes.
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Sep 12, 2022 · He proposed that in addition to reservations, "free pasturage on unclaimed land and the right to fish at their usual places would be guaranteed, ...
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ARTICLE 5 of the 1855 Treaty of Point Elliott. The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in ...Missing: clause | Show results with:clause
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Therefore, Stevens ensured that the treaties promised tribes the right to fish “at all usual and accustomed” places. This meant that the Indians would be able ...
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Makah Tribe); Treaty of Point Elliot, Jan. 22, 1855, 12 Stat. 927 (1859) ... the treaties fishing clause."' 6. For further support, Judge Orrick examined ...
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In the early twentieth century, Native peoples protested the State's illegal fishing regulations by simply continuing to fish, thereby exercising their treaty ...Civil Disobedience · Were the Fish Wars Resolved? · Backlash to Boldt Decision...
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In 1970 white sports fisherman began adopting the fish-in as a means of asserting their own “civil rights” against Native American fishermen. Ironically, this ...
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Beginning in the early 1960s, the State substantially increased its enforcement against off-reservation fishing in Puget Sound. See generally Bradley G ...
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Enforcement of state fishing laws and regulations against treaty Indians fishing at ... against the persons exercising the treaty fishing rights of such tribe.
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Jun 26, 2024 · In 1964 SAIA, led by Hank Adams, began organizing “fish-ins” after the state of Washington refused to recognize the treaty-protected right of ...
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[29]
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Mar 1, 2003 · On March 2, 1964, Native Americans protest the denial of treaty rights by fishing in defiance of state law.
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The trial court in No. 247 found that all lands within the boundaries of the reservation created by the Treaty have been transferred to private ownership ...
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Mar 28, 2011 · The Northwest Indian Fisheries Commission, an intertribal organization representing 20 Western Washington treaty tribes, formed in 1974.
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[PDF] Economic Effects of the Boldt and Rafeedie Decisions Forthcoming ...
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[42]
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How the U.S. Broke Its Promise to Protect Fish for Tribes - ProPublica
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Mar 8, 2019 · One passenger even called for violence, reflecting the attitudes of those that hung Boldt in effigy. He said, “The Negroes didn't accomplish.
[60]
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Sep 26, 1980 · The court now establishes that artificially-reared fish must be included in this allocation in order to meet the tribes' moderate living needs.
[61]
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The Report then listed the following places where the Suquamish traditionally took fish (salmon, herring, steelhead, halibut, and shellfish), by trolling.
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Jun 27, 2016 · The case involves a dispute over tribal fishing rights guaranteed by the Stevens Treaties, with Washington ordered to correct culverts ...
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The court concluded that Washington has violated, and continues to violate, its obligation to the Tribes under the fishing clause of the Treaties.
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Washington v. United States | Oyez
Apr 18, 2018 · The district court found for the Tribes and issued an injunction ordering Washington to correct its offending culverts. The Ninth Circuit affirmed.Missing: subsequent steelhead
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The 2025–2026 recreational salmon fishing season package was approved by the Washington Department of Fish and Wildlife (WDFW) on Monday, June 16. WDFW ...
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