The Boldt Decision: When a Judge Gave Tribes Half the Salmon

In the eighteen fifties, Isaac Stevens negotiated treaties with the Puget Sound tribes that ceded millions of acres in exchange for reserved rights. The treaty language, in several agreements, stated that the tribes retained the right to fish at their usual and accustomed grounds and stations, in common with all citizens of the territory. For a century after the treaties were signed, the state of Washington interpreted "in common with" to mean that tribal members had the same rights as any other Washington resident to buy a fishing license and go fishing. The tribes read the phrase differently. In nineteen seventy-four, a federal judge agreed with the tribes.

The judge was George Hugo Boldt, a Chicago-born jurist who had been appointed to the federal bench by President Eisenhower in nineteen fifty-three. Boldt spent nearly a year examining the treaty history before issuing his ruling in the case known as United States v. Washington. He concluded that "in common with" meant not equal access but equal division: the treaty tribes were entitled to fifty percent of the harvestable salmon in their traditional fishing territories. He backed this interpretation with extensive historical analysis of what the treaty negotiators, on both sides, appeared to have understood at the time of signing.

The ruling was staggering in its practical implications. It gave tribes including the Muckleshoot, Tulalip, Suquamish, Lummi, Makah, and more than a dozen others co-management authority over Washington's salmon fisheries. It reversed a century of state-level exclusion from the rivers and waters the treaties had explicitly reserved. The immediate response from non-tribal fishermen was fury. Confrontations on rivers and in courts followed through the late nineteen seventies, a period known as the Fish Wars. Some tribal boats were rammed. Federal marshals accompanied tribal fishermen.

The Supreme Court upheld the Boldt Decision in nineteen seventy-nine. Today, the tribal co-management authority the ruling established is the foundation of salmon policy in Washington state. The tribes are at the table when decisions are made about hatcheries, habitat, and harvest levels. Judge Boldt retired and died in nineteen eighty-four, having spent his last years defending the ruling against repeated legal challenges. The tribes whose treaty rights he recognized had been waiting since eighteen fifty-five.