REMEMBERING BOLDT: A 40-YEAR ANNIVERSARY
By Jim Tuggle
The 1960’s were a turbulent time in America. We had the Vietnam War, the beginning of the Flower Power culture, Civil Rights awakenings, and here in the Northwest, civil disobedience surrounding fishing rights.
From 1967 to 1969, I had the unforgettable of experience of serving in the U.S. Army. It was the first time I had experienced real combat – the blood, brutality, gore and violence involved in man’s inhumanity to man. And my combat experience was only in the Enlisted Men’s Club on Saturday night! To say I had been lucky in the service to my country was to put it mildly. I got out of the Army relatively unscathed, except for the normal lumps and bumps associated with being a Military Policeman assigned to an isolated outpost in Germany.
Back home in the Northwest, a new type of combat brewed on the banks of the Puyallup, Nisqually and Green Rivers. The conflict involved icons of the Northwest – its salmon and steelhead, and who had the right to fish for them . . . and who didn’t.
In the early autumn of 1971, I found myself wondering “what-in-the-hell-am-I-doing-here” as I drifted down the Nisqually River, wearing a flack jacket and an Army-style steel pot on my head, looking for illegal Indian fishing nets to pull. I had been hired as a Fisheries Patrol Officer in the summer of that year and had spent much of my initial assignment working on a patrol boat out of the Bellingham and eastern San Juan Islands area. It was a beautiful place to work, but actually quite boring for a young guy itching to get in on some of the action that he had heard about from other officers. Now it was fall, and I was assigned to work the salmon streams of Puget Sound.
Since I was the youngest and newest guy in Fisheries Patrol, the enforcement arm of the old Washington Department of Fisheries, I got shipped around the state in order to gain experience. So even though I was assigned to Seattle, I could count on being involved in new experiences in the fisheries enforcement world in the next few months of salmon runs. Floating down the Nisqually in a Lund full of salmon wrapped in gillnets, and wearing protective armor, was not quite what I envisioned when I took the job. “I wonder if anyone could swim with this gear on,” I asked myself.
The salmon wars began heating up in the late 1960’s, and were highlighted by the appearance of noted celebrities touting the Indians’ fishing rights claims, and the alleged abuses suffered at the hands of the state’s departments of Fisheries, and Game. Several famous and somewhat violent confrontations between enforcement entities of both state departments, tribes and their sympathizers took place on the Puyallup River in the fall of 1968 and 1969. During one of those confrontations a wooden bridge spanning the Puyallup was set ablaze. Firearms were brandished, and the potential for a violent event loomed greater with each confrontation.
Most of the inflammatory dialogue and threats to officers were actually made by the camp followers of the various tribes and seldom by the tribal members themselves, with a few notable exceptions. The tribal members were there to assert their fishing rights, not for the subornation of violence. I later learned several of the camp followers were sent by their organizations just to provoke violence. Among those were members of communist organizations and young people from militant student organizations. Those camp followers were there not so much to support the Indians’ fishing rights, but to stir up trouble. Even though the tribal member’s actions weren’t exactly Gandhi-like, looking back on how things could have really gone sideways in some of the confrontations, I have to give the tribal members a lot of credit for keeping a lid on things, so to speak. Luckily for me, the Nisqually events of the 1970’s – if you could call them that – had amounted mostly to pushing and shoving matches, tug of wars using tribal fishing nets, spiced up by the rare fist fight. Still, I was more than a little nervous when I went there to pull the tribal fishing nets.
To fill you in on the basic background of this conflict, Slade Gorton, who would later become our U.S. Senator, was the Attorney General of Washington at the time. According to the Department of Fisheries leadership, Gorton had declared many of the tribal fishing actions to be contrary to state law, depending on a lot of other factors. The state leaders had interpreted the Medicine Creek Treaty’s key phrase “of taking fish in common with other citizens of the territory” (and I’m paraphrasing from memory here), to mean that the tribal fishing rights of the signatories to that treaty, the Nisqually, Puyallup, and the Squaxin Island tribes were guaranteed the same rights as the other citizens. Therefore, except for on-reservation fishing they would have to abide by state fishing rules the same as other citizens. (It wasn’t quite that simple, but that was the state’s basic premise at the time.) Other tribes governed by similar treaties were asserting their fishing rights elsewhere throughout the state.
The three tribes, as well as many others who were signatories to other similar treaties, didn’t see it that way. I was certainly no student of treaty law then but have learned a lot since. What I was a student of then was obeying the orders of my superiors. I didn’t question their interpretation of the treaty rights of the Indians because the little bit that I had heard about their interpretation of the language of the treaty seemed reasonable to me. The phrase “in common with” meant equal rights to me, and the leadership of our state had identified tribal fishing as an illegal act when it was conducted off reservation, and outside the purview of state regulations.
The next several years of my career as a Fisheries Patrol Officer, or “Fish Cop” as we called ourselves, were spiced with episodes of pulling tribal fishing nets and confrontations with angry tribal members expressing their outrage at our actions that deprived them of their treaty rights. I pulled nets from the Nisqually, Puyallup, Carbon, Green, and Skokomish Rivers, as well as numerous small creeks in Puget Sound and Hood Canal. As I remember, we made very few actual arrests, preferring to just take the personal information of the tribal members rather than booking them into jail, especially in those instances where the Indians were fishing more overtly, attempting to assert their treaty rights and did not try to hide their actions. The mere taking of the tribal member’s personal information proved to be a wise counsel as we looked back on our actions.
Wildlife Agents of the Game Department had slightly different orders. They were more aggressive in their protection of the steelhead resources than the leadership of the Fisheries Department was of salmon. Since the Legislature had statutorily categorized the steelhead as a “game fish”, it could not be taken for commercial purposes. Salmon were classified as “food fish” and could be taken for commercial purposes. Since the tribal fishing with gillnets was viewed and technically classified as fishing commercially, my friends in the Game Department felt they had an even stronger mandate to protect the steelhead from being taken from the rivers by so-called illegal nets. They were summarily directed by the Game Commission to do just that. However, at the Department of Fisheries the state salmon managers granted some off-reservation fishing seasons to the tribes. But the proprietary attitude of the state did not set well with the tribes and they continued to express their desire for independence from the state’s salmon management scheme. They demanded that their treaty fishing rights be recognized.
Conservation was cited by many as the necessary reason for not allowing an in-river harvest by the treaty tribes. Most people never stopped to think about the salmon harvesting done by non-Indians on the ocean and Puget Sound. The nets in the rivers were too visible, especially in the Puyallup, and especially offensive to those who pursued salmon and steelhead with rod and reel. The non-Indian commercial fishing fleet remained somewhat invisible. Never mind that they, combined with the sport fishing fleet, took almost all of the available salmon and sometimes more than that. Nets just didn’t belong in rivers, many decried, so people like me, hired to protect our fisheries resources, pulled them out as ordered. New salmon hatcheries blossomed in our state in that era in order to meet the rising demand for salmon.
I don’t remember paying much attention to the fact that the United States government, on behalf of the treaty tribes, was suing the state of Washington over the Indians’ treaty fishing rights. I felt comfortable in knowing that our state was in a position of defending equal rights, and even felt a little righteous about it. So in February of 1974 when I learned that U.S. District Court Judge George Boldt upheld the treaty tribes’ rights to not only fish in their usual and accustomed places, but to take half of the available catch of salmon and steelhead, I was truly shocked. Both commercial and sport fishing leaders were more than shocked, they were horrified. How would this case law be applied? How would the salmon be managed now? Would the Indians really be able to take half of all the harvestable salmon and steelhead? The “Boldt Decision”, as it came to be known, would change the lives of every person who worked with or fished for salmon and steelhead from that date on. Especially mine.
The focus of our most vital conservation efforts soon changed from one of enforcing the laws against tribal fishing to enforcing the new law to keep commercial fishermen from taking too many of the salmon in order to guarantee that the treaty tribes had the opportunity to catch their court mandated share. At first the tribes were not equipped to harvest their share but within in a couple of years they had “geared up” enough to catch a much larger share of salmon. In those days of the early 1970’, salmon were worth a small fortune compared to what they are worth now. The Boldt Decision proved to be an economic boon to the Indian tribes exercising their new fishing rights and an economic bust to the pre-existing commercial salmon fishermen. Recreational fishers experienced depleted runs, especially in steelhead fisheries. Fisheries management entered a new era. Fisheries enforcement became a nightmare.
On the one hand, federal courts had mandated the state Department of Fisheries to enforce the newly interpreted intent of the treaty law. On the other hand, the department did not have legislative authority to do that. Legislative leaders refused to fund the department’s enforcement division in order to handicap their efforts to enforce what the Legislature felt was an unjust court ruling by Boldt. Surely the U.S. Supreme Court would overrule this U.S. District Court decision and bring some sense back to fisheries management, it was argued. But most of our state’s leadership was proven wrong when the U.S. Supreme Court did, in fact, by majority decision, uphold the tribes’ rights as defined by Judge Boldt’s original U.S. District Court decision.
Meanwhile, we Fish Cops had stopped pulling the tribal nets and had been re-directed to enforce conservation laws against the non-Indian’s continuing illegal fishing. While the enforcement of the laws against the pre-Boldt Decision fishing actions of the tribes made me more than nervous, the enforcement of the new law against the non-Indians eventually scared me. The commercial fishermen were fueled by the belief that the Boldt Decision would be overturned, the grim economic reality that they would not be able to catch nearly as many salmon as they had in the past, and that their professions and their way of life were in real jeopardy. Many felt they were truly fighting for their lives.
What followed the Boldt Decision of 1974 were years of incredibly difficult and dangerous work for Fisheries Patrol Officers on Puget Sound. Several violent confrontations between officers and gillnetters took place, culminating with the shooting of a lawbreaker at Foulweather Bluff on October 24, 1976 when he attempted to ram a patrol boat as it was affecting an arrest. I was there when most of the confrontations took place, including the shooting incident at Foulweather Bluff. I wouldn’t want to do it again. Both the officers and the commercial fishermen were extremely lucky.
The commercial fishing confrontations influenced the Department of Fisheries to make several significant changes in the way it looked at fisheries enforcement. Prior to 1976, officers were discouraged from carrying firearms, and if they were carried, they were to be carried concealed. After the Boldt Decision all that changed and officers received considerable training in firearms usage, defensive tactics and other emergency procedures. The extreme hours of work also caused the formation of a statewide union and the officers’ first labor agreement in the history of Fisheries Patrol.
After the Supreme Court upheld the Boldt Decision, much of the illegal fishing activity of the commercial fleet subsided and that trend continued for several more years until illegal commercial fishing activity became infrequent, other than an almost every night occurrence in the fall. My professional life changed considerably. The 350-hour per month workload significantly diminished after our first labor contract was negotiated and ratified in 1977. I spent less and less time on Puget Sound and more time on the Columbia River near Kelso where I had lived since 1973. I began learning about treaty law to better understand the intent of the Medicine Creek Treaty and others similar in nature and intent. It had been a marvelous time to be young and energetic and to witness such important history first hand rather than reading about it. If I would have been much older I couldn’t have done it.
Looking back on the Boldt Decision, it is easier to see the mistakes that were made that brought this still controversial decision to bear. For one thing, our state’s leadership did a poor job of researching treaty history and the case law pertaining to treaty rights. If they had done a better job researching they would have recognized that the phrase “in common with” had already been defined in case law to mean, basically, a 50/50 split. Common sense dictated otherwise, but by case law definition an even sharing provision prevailed. We made a lot of mistakes. Also, I later learned the state leadership could have mitigated the treaty tribes fishing rights claims to a much lower percentage of the catch than 50%. Hindsight is 20/20 someone said, and that is what we could have settled with the tribes for: 20% of the catch. But the state went stubbornly forward, bet the ranch and lost. The rest is history.
Will the Boldt Decision ever be significantly modified, mitigated or overturned? Who knows. I doubt that it will ever be over turned, however, there are already glaring conflicts with it and other U.S. Court decisions that declare that many treaty rights were extinguished when Indians were granted citizenship in the early 20th century. Perhaps there will be other mitigation offered to the treaty tribes, or a federally mandated buy-out of aspects of the treaties, such as fishing rights. If, and when the Boldt Decision is ever significantly modified, there will be another equally thunderous reaction from both the tribes and the non-Indians. I’m glad I won’t be the one wearing the badge for the next round of fishing confrontations and civil disobedience. Maybe the next time the lessons that we did or didn’t learn will serve us better in dealing with the courts and our country’s values. But, I think those days are a long, long way off into our future.