United States v. Washington

United States v. Washington
United States District Court for the Western District of Washington
Full case name	United States of America, Plaintiff, Quinault Tribe of Indians on its own behalf and on behalf of the Queets Band of Indians, et al., Intervenor-Plaintiffs, v. State of Washington, Defendant, Thor C. Tollefson, Director, Washington State Department of Fisheries, et al., Intervenor-Defendants
Date decided	February 12, 1974
Citations	384 F.Supp. 312
Judge sitting	George Hugo Boldt
Case history
Prior actions	Original action
Subsequent actions	affirmed and remanded by 520 F.2d 676 (9th Cir. 1975); certiorari denied by 423 U.S. 1086 (1976)
Case holding
"The District Court, Boldt, Senior District Judge, held, inter alia, that (1) Washington has the legal authority to regulate the exercise of Indian tribes' off-reservation treaty right fishing only to the extent necessary for conservation of fishery resources, (2) any one of plaintiff tribes was entitled to exercise its governmental powers by regulating the treaty right fishing of its members without any state regulation thereof, provided the tribe had and maintained certain specified qualifications and accepted and abided by certain delineated conditions and (3) certain Washington statutes and regulations, delineated in the opinion, failed to meet the standards governing their applicability to the Indian exercise of treaty fishing rights and therefore could not lawfully be applied to restrict members of tribes having such rights from exercising same."[1]

United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), commonly known as the Boldt decision, was a 1974 court case that reaffirmed the reserved right of Washington American Indian tribes to act as co-managers, alongside the state, of salmon and other fish and to continue to harvest it in accordance with the various treaties that the United States had signed with the tribes. The case was decided by Judge George Hugo Boldt of the United States District Court for the Western District of Washington. The tribes of Washington had ceded their land to the United States, but had reserved the right to fish as they always had done, including fishing at their traditional locations that were off of the designated reservations.

Over time, the state of Washington had infringed on the treaty rights of the tribes, despite losing a series of court cases on the issue. These cases provided that the Indians had an easement to go through private property to their fishing locations, that the state could not charge Indians a fee to fish, that the state could not discriminate against the tribes in the method of fishing allowed, and that the Indians had a right to a fair and equitable share of the harvest. The Boldt decision further defined that reserved right, that the tribes were entitled to half of the fish harvest each year, coming to that conclusion after a long trial in 1974.

In 1975 the Ninth Circuit Court of Appeals upheld Boldt's ruling and the U.S. Supreme Court declined to hear the case. After the state refused to enforce the court order, Judge Boldt ordered the United States Coast Guard and federal law enforcement agencies to enforce his rulings. On July 2, 1979, the Supreme Court largely endorsed the decision in Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, which was a collateral attack on the decision. Justice John Paul Stevens delivered the opinion of the court, writing that "Both sides have a right, secured by treaty, to take a fair share of the available fish."^[2] The Supreme Court also endorsed Boldt's orders to enforce his rulings by the use of federal law enforcement assets and the Coast Guard.

Background

History of tribal fishing

The American Indian tribes of the Pacific Northwest have long depended on the salmon harvest, and allowed these tribes to become the wealthiest North American tribes.^[3] The salmon harvest for the Columbia River basin is estimated at 43,000,000 pounds (20,000,000 kg) annually^[4] and provided the tribes with both sufficient salmon for their own needs, but also enough to trade with others.^{[fn 1]} By the 1840s, tribes were trading salmon to the Hudson Bay Company, which shipped the fish to New York, to Great Britain, and other locations around the world.^[7]

Treaties

In the 1850s, the United States government entered into a series of treaties with the American Indian tribes of the Pacific Northwest. In the Treaty of Olympia^[8] territorial governor Isaac I. Stevens^{[fn 2]} agreed that the tribes had rights including:

"The right of taking fish at all usual and accustomed grounds and stations is secured to said Indians in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing the same; together with the privilege of hunting, gathering roots and berries, and pasturing their horses on all open and unclaimed lands. Provided, however, That they shall not take shell-fish from any beds staked or cultivated by citizens; and provided, also, that they shall alter all stallions not intended for breeding, and keep up and confine the stallions themselves."^[10]

Other treaties with area tribes included the Treaty of Medicine Creek,^[11] the Treaty of Point Elliott,^[12] the Treaty of Neah Bay,^[13] and the Treaty of Point No Point.^[14] All of the treaties had similar language on the rights of the Indians to fish outside of the reservation.^[15] This was due to the fact that while the tribes were willing to part with their land, but all of the tribes insisted on protecting their fishing rights throughout Washington and Oregon.^[16]

Post-treaty history

Initially, the treaty rights of the tribes were honored, but as more and more white settlers came into the area, things began to change. By the time thirty years had passed, whites had established over forty salmon canneries by 1883^[17] In the Puget Sound area, there were three canneries in 1894, but twenty-four by 1905.^[18] The whites also began to use new techniques that prevented the majority of the salmon from reaching the tribal fishing areas.^[19] In 1889, when Washington transitioned from being a territory to a state, the legislature began to pass "laws to curtail tribal fishing in the name of 'conservation' but which actually were designed to protect white fisheries."^[20] The tribes then turned to the courts for enforcement of their rights under the treaties.^[21]

United States v. Taylor

In one of the first of these enforcement cases, decided in 1887, the United States Indian Agent and several members of the Yakima tribe filed suit in territorial court to enforce their right of access to off-reservation fishing locations. Frank Taylor had obtain land from the United States and had fenced off the land, preventing access by the Yakima to their traditional fishing locations.^[22] Although the trial court^{[fn 3]} ruled in Taylor's favor, the Supreme Court of the Territory of Washington reversed^[24] and held that the tribe had reserved its own rights to fish, thereby creating an easement or an equitable servitude of the land that was not extinguished when Taylor obtained title.^{[fn 4] [26]}

United States v. Winans

Within ten years, another case came up, this one dealing with fishing rights at Celilo Falls, a traditional Indian fishing location. Two brothers, Lineas and Audubon Winans, owned property on both sides of the Columbia River and obtained licenses from the state to operate four fish wheels.^[27] These wheels prevented any significant number of salmon to pass the location, and additionally, the Winans prohibited anyone, whether an Indian with treaty rights or otherwise, from crossing their land to get to the falls.^[28]

The local U.S. Attorney then filed suit to enforce the treaty rights of the tribe. At the trial court level, the court held that the property rights of the Winans allowed them to exclude others, including the Indians, from the property.^[29] In 1905, the U.S. Supreme Court reversed that decision, holding that the tribe had reserved fishing rights when they ceded the property to the United States.^[30] Since the tribes had reserved the right to fish in the treaties, the federal government and subsequent owners had no greater property rights than were granted by the treaties.^[31]

Seufert Bros. Co. v. United States

In 1914, the United States sued again, this time against the Seufert Brothers Company, which had prevented Yakima Indians such as Sam Williams from fishing on the Oregon side of the Columbia River near the Celilo Falls.^[32] Here, the U.S. District Court had issued an injunction, and the Supreme Court affirmed, again holding that the treaties created a servitude that ran with the land.^[33] This decision was significant in that it expanded the hunting and fishing rights outside of the territory ceded by the tribes when it was shown that the tribe used the area for hunting and fishing.^[34]

State attempts to regulate Indian fishing

Tulee v. Washington

In Tulee v. Washington^[35] the U.S. Supreme Court once again ruled on the treaty rights of the Yakima tribe. In 1939, Sampson Tulee, a Yakima, was arrested for fishing without a state fishing license.^{[fn 5] [37]} The United States immediately filed for a writ of habeas corpus, which was denied on procedural grounds until Tulee had been tried in state court and exhausted his appeals.^[38] Tulee was convicted in state court and his conviction was upheld by the Washington Supreme Court, on the grounds that the state's sovereignty allowed the state to impose a fee on Indians who were fishing outside of the reservation.^[39] The U.S. Supreme Court reversed, stating "we are of the opinion that the state is without power to charge the Yakimas a fee for fishing."^[40]

The Puyallup cases

Following the Tulee decision, there were three U.S. Supreme Court decisions involving the Puyallup tribe.^{[fn 6]} The first, Puyallup Tribe v. Dept. of Game of Washington,^{[fn 7][42]} Here, the state had banned the use of nets for fishing for steelhead trout and salmon,^{[fn 8]} but the tribes continued to use nets based on their treaty rights.^[44] Justice William Douglas delivered the opinion, which said that the treaty did not prevent state regulations that were reasonable and necessary under a fish conservation scheme, so long as the regulation was not discriminatory.^[45]

After being remanded to determine if the regulations were not discriminatory, the case returned to the U.S. Supreme Court in Dept. of Game of Washington v. Puyallup Tribe.^[46] Again, Justice Douglas wrote the opinion, but this time he struck down the state restrictions as discriminatory.^[47] Douglas noted that the restrictions on nets remained for the steelhead trout, which only the Indians used, and only allowed hook and line fishing, which only the non-Indians used.^[48] This had the effect of allocating all of the steelhead trout to the sports fishermen, and none to the tribes.^[49]

Finally, the third case Puyallup Tribe, Inc. v. Dept. of Game of Washington,^[50] was decided in 1977. It held that, despite the tribes sovereign immunity, the state could regulate the harvest of steelhead trout in the portion of the river that ran through the Puyallup Reservation, if the state could base its decision and apportionment on conservation grounds.^[51]

The Belloni decision

One year after the Puyallup I decision, Judge Robert C. Belloni issued an order in Sohappy v. Smith,^[52] a treaty fishing case involving the Yakima tribe and the state of Oregon. In this case, Oregon had discriminated against the Indians in the favor of the sports and commercial fishermen, allocating almost nothing to the tribes at the headwaters of the river.^[53] Oregon argued that the treaties only gave the Indians the same rights as every other citizen, and Belloni noted that "Such a reading would not seem unreasonable if all history, anthropology, biology, prior case law and the intention of the parties to the treaty were to be ignored."^[54] Belloni also found that:

"The state may regulate fishing by non-Indians to achieve a wide variety of management or ‘conservation’ objectives. Its selection of regulations to achieve these objectives is limited only by its own organic law and the standards of reasonableness required by the Fourteenth Amendment. But when it is regulating the federal right of Indians to take fish at their usual and accustomed places it does not have the same latitude in prescribing the management objectives and the regulatory means of achieving them. The state may not qualify the federal right by subordinating it to some other state objective or policy. It may use its police power only to the extent necessary to prevent the exercise of that right in a manner that will imperil the continued existence of the fish resource."^[55]

Belloni issued a final ruling that the tribes were entitled to a fair and equitable portion of the fish harvest.^[56] The court retained continuing jurisdiction, and his order was not appealed.^[57]

U.S. District Court (Boldt decision)

Issue

Although the Belloni decision established the rights of the Indians to exercise their treaty fishing rights, the states continued to arrest Indians for violations of state law and regulations that infringed on those rights.^[58] In September 1970, the United States Attorney filed an action in the U.S. District Court for the Western District of Washington alleging that the state of Washington had infringed on the treaty rights of the Hoh, Makah, Muckleshoot, Nisqually, Puyallup, Quileute, and Skokomish tribes.^[59] Later, the Lummi, Quinault, Sauk-Suiattle, Squaxin Island, Stillaguamish, Upper Skagit, and Yakima tribes intervened in the case.^[60] Defendants were the state of Washington, the Washington Department of Fisheries, the Washington Game Commission, and the Washington Reef Net Owners Association.

Trial

The first phase of the case took three years, mainly in preparation for trial.^[61] During the trial, Boldt heard testimony from about fifty witnesses and admitted 350 exhibits.^[62] The evidence showed that the state had shut down many sites used by Indians for net fishing while allowing commercial net fishing elsewhere on the same run.^[63] At most, the tribes took only about two percent (2%) of the total harvest.^[64] There was no evidence presented by the state that showed any detrimental actions by Indians toward the harvest.^[65] Additionally, Boldt found that the tribe's witnesses were more credible than those of the state.^[66]

Holding

The court held that, when the tribes conveyed millions of acres of land in Washington State through a series of treaties signed in 1854 and 1855, they reserved the right to continue fishing. The court looked at the minutes of the treaty negotiations to interpret the meaning of the treaty language "in common with" as the United States described it to the Tribes, holding that the United States intended for there to be an equal sharing of the fish resource between the Tribes and the settlers.^[67] As the court stated, the phrase means "sharing equally the opportunity to take fish...therefore, nontreaty fishermen shall have the opportunity to take up to 50% of the harvestable number of fish...and treaty right fishermen shall have the opportunity to take up to the same percentage".^[68] The formula used by Boldt gave the tribes forty-three percent (43%) of the Puget Sound harvest, which worked out to eighteen percent (18%) of the statewide harvest.^[69]

The state could regulate the Indians exercise of their treaty rights, but only to ensure the "perpetuation of a run or of a species of fish. . . ."^[70] To regulate the Indians, the state must be able to show that conservation could not be achieved by regulating only the non-Indians, must not discriminate against the Indians, and must use appropriate due process.^[71]

Subsequent developments

Legal

Direct appeals

Both parties immediately appealed the decision to the United States Court of Appeals for the Ninth Circuit. On June 4, 1975, the Ninth Circuit affirmed Boldt's decision and remanded it to his court for continuing jurisdiction.^[72] Requests for rehearing and rehearing en banc were denied by the Ninth Circuit on July 23, 1975.^[73] On January 26, 1976, the United States Supreme Court denied certiorari,^[74] ending the direct appeals of the case.

Collateral attacks

After Boldt's decision, the Washington Department of Fisheries issued new regulations in compliance with the decision.^[75] The Puget Sound Gillneters Association and the Washington State Commercial Passenger Fishing Vessel Association both filed lawsuits in state court to block the new regulations.^[76] These private concerns won at both the trial court^{[fn 9]} and at the Washington Supreme Court.^[78] Washington Attorney General Slade Gorton supported the position of the private concerns and opposed the position of the United States and the tribes.^[79] The United States Supreme Court granted certiorari and vacated the decision of the Washington Supreme Court.^[80]

Justice John Paul Stevens announced the decision of the Court, which upheld Judge Boldt's order and overturned the rulings of the state courts.^[81] Stevens made it explicitly clear that Boldt could issue the orders he did, stating "The federal court unquestionably has the power to enter the various orders that state official and private parties have chosen to ignore, and even to displace local enforcement of those orders if necessary to remedy the violations of federal law found by the court."^{[fn 10][83]}

Court supervision

When the state would not enforce his order, Boldt took direct action, placing the matter under federal supervision.^[84] The United States Coast Guard and the National Marine Fisheries Service were ordered to enforce the ruling and soon had boats in the water confronting violators.^[85] Some of the protesters rammed Coast Guard boats and at least one Coast Guardsman was shot.^[86] Those whom the officers caught breaking the court's orders were taken before federal magistrates and fined for contempt, and the illegal fishing as a protest stopped.^[87] As of 2013, the U.S. District Court continued to exercise continuing jurisdiction over the matter, determining traditional fishing locations^[88] and compiling major orders of the court.^[89]

Landmark case

The Boldt decision is considered to be a landmark case in American Indian law, in the area of cooperative management of resources,^[90] for Indian treaty rights,^[91] internationally for aboriginal treaty rights,^[92] and tribal civil rights.^[93]

Public response

The decision caused an immediate reaction from the public. Bumper stickers reading "Can Judge Boldt, Not Salmon" appeared, and Boldt was hung in effigy at the federal courthouse.^[94] Non-Indian commercial fishermen ignored the ruling and the state was reluctant (or at times refused) to enforce the law.^{[fn 11][97]} By 1978, Congressman John E. Cunningham tried to get a bill passed to abrogate the treaties, to break up Indian holdings, and stop giving the tribes "special consideration," but the effort failed.^[98] In 1984, Washington voters passed an initiative ending "special rights" for Indians,^[99] but the state refused to enforce it as being preempted by federal law.^[100]

United States v. Washington was a landmark case in terms of Native American civil rights and evoked strong emotions. According to former U.S. Representative Lloyd Meeds of Everett, "the fishing issue was to Washington state what busing was to the East" during the African-American Civil Rights Movement.^[101]

Tribal developments

The tribes involved benefited greatly from the decision. Prior to Boldt's ruling, Indians collected less than five percent (5%) of the harvest, within ten years (1984), they were collecting forty-nine percent (49%).^[102] Tribal members began to become successful commercial fishermen, even expanding to marine fishing as far away as Alaska.^[103] The tribes be co-managers of the fisheries along with the state, hiring fish biologists and staff to carry out those duties.^[104] The Makah tribe, based on the terms of the Neah Bay Treaty and the Boldt decision, took their first California gray whale in over seventy years in 1999.^[105] Following a lawsuit by various animal rights activists, the tribe was allocated the right to take up to five whales a year for the 2001 and 2002 seasons.^[106]

Notes

References

Further reading

• Text of the Boldt Decision: Hon. George H. Boldt, The Boldt Decision; PDF on the site of the Washington (state) Department of Fish and Wildlife