Washington treaty tribes will mark the 50th anniversary of the Boldt Decision on Feb. 6–7 at the Muckleshoot Events Center in Auburn. Some 500 people are registered to attend, according to the Northwest Indian Fisheries Commission.
Washingtonians got a lesson in treaty law and tribal sovereignty when U.S. District Court Judge George H. Boldt made his Feb. 12, 1974, ruling in United States v. State of Washington.
The landmark decision affirmed the treaty rights of Native nations that ceded much of Western Washington to the U.S. in 1855 but reserved for themselves and their descendants certain inherent rights — chief among them the right to fish, hunt and gather resources throughout their usual and accustomed areas.
To non-Native commercial and recreational fishers, the ruling was more a gut punch than a lesson in the law. Boldt’s decision was challenged by the state but upheld by the U.S. Supreme Court.
In his ruling, Boldt determined that Native treaty signers’ understanding in 1855 was that they were extending to non-Natives 50% of the harvestable salmon catch and reserving 50% for their people. Henceforth, Boldt ruled, tribal governments and the state must co-manage fisheries to ensure salmon is available and the treaty is honored.
The matter of sovereignty
Boldt’s ruling also cast tribes and the treaties in a different light: They were Native nations that never ceded their sovereignty and treaties are, the U.S. Constitution states, the “supreme law of the land.” That means the Treaty of Point Elliott, for example, carries as much weight and authority as a treaty between the U.S. and a foreign government.
“The Boldt decision really didn’t strengthen our beliefs in who we are and what we stand for and our rights as citizens here in this country. What it did was amplify it,” said Darrell Hillaire, a former Lummi Nation chairman and founder of Children of the Setting Sun Productions, a Bellingham-based nonprofit that produces multimedia cultural presentations.
“We knew all along pre-Boldt there were so many legal fights or political fights to remind people, ‘Hey, we have an agreement here and it was two sovereigns making that agreement.’,” Hillaire said. “That was always the belief and it was the Boldt Decision that amplified that through that time — the Civil Rights era, the Vietnam War. It was a recognition of who we are as a people and the rights we stand for.”
If the Boldt Decision affirmed the sovereignty of tribal nations, decisions that followed gave their influence more traction.
The federal Indian Gaming Regulatory Act of 1988 recognized the authority of tribal nations to regulate gaming on their lands. Gaming revenues spawned economic development, which in turn led to land buybacks and environmental defense and treaty rights protection.
Today, Native nations that share geography with Washington state have more than 24,600 square miles within their jurisdictions — combined, that’s more land mass than 107 recognized nations of the world, between Latvia and Croatia. And they are economic powerhouses, with investments in construction, energy, entertainment, health, media and recreation.
Native nations directly employ more than 37,000 people, according to the Washington Indian Gaming Association, and annually pay about $1.5 billion in wages and benefits and $1.2 billion in state and local taxes. In addition, they invest hundreds of millions of dollars each year in economic development, emergency services, housing, public safety, transportation and utilities, the gaming association reported.
- Lummi Nation-owned enterprises include Silver Reef Casino Resort, Loomis Trail Golf Course, Lummi Bay Markets, and Salish Village commercial center. Lummi also owns and operates Lummi Nation School, and the headquarters campus of Northwest Indian College, founded by the Lummi Nation, is located on the reservation.
- The Nooksack Tribe owns Nooksack Northwood Casino and the Nooksack Center minimart, and Between the Ferns Cannabis in Deming.
- The Upper Skagit Tribe owns Hometown Pharmacy near Sedro-Woolley, Skagit Valley Casino Resort, The Skagit Ridge Hotel, Encore restaurant, the Market Buffet and Bow Hill Gas and Food Mart.
- The Swinomish Tribe owns Swinomish Casino and Lodge, Swinomish Golf Links, Swinomish Markets, Swinomish RV Park, and three gas stations and convenience stores. The tribe leases land to various enterprises; it also owns didgʷálič Wellness Center, which provides substance abuse treatment services for Native and non-Native clients.
- The Samish Indian Nation owns Fidalgo Bay Resort, Samcor Fuel and Tobacco, the Cannery Building, and a waterfront business office building in Anacortes. Samish also owns Samish Longhouse Preschool, which provides pre-K education and day care for Native and non-Native students.
Treaties: ‘supreme law of the land’
Each of the eight treaties signed in the 1850s in what is now Washington state contains the following language: “The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory … together with the privilege of hunting and gathering roots and berries on open and unclaimed lands.”
As co-managers of the salmon population, Native nations are involved in habitat restoration and protection, salmon population monitoring, hatchery operation and setting of catch limits based on salmon population estimates. They’ve also been instrumental in other significant court decisions to restore salmon habitat.
- In 1992, a federal court ordered the removal of two dams on the Elwha River, which for a century blocked salmon from upriver spawning and rearing habitat.
- In 1994, U.S. District Court Judge Edward Rafeedie extended Boldt’s interpretation of “in common with” to include shellfish — including on public and private tidelands — with the exception of shellfish cultivation areas specifically set aside for non-Natives. “A treaty is not a grant of rights to the Indians,” Rafeedie wrote, “but a grant of rights from them.”
- In 2013, U.S. District Court Judge Ricardo Martinez ruled that the state of Washington must remove hundreds of state highway culverts that restrict salmon migration and reduce the numbers of fish available for harvest.
‘Tribe’ or ‘nation’?
The U.S. Supreme Court ruled in 1832 that the United States must treat tribes as nations. “Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil,” Chief Justice John Marshall wrote. “The very term ‘nation,’ so generally applied to them, means ‘a people distinct from others.'”
Tribes have the inherent right to define themselves the way they see best — as tribe, nation or community — just as Kentucky, Massachusetts, Pennsylvania and Virginia have the right to define themselves as commonwealths rather than states.
Some tribes, including the Samish, use the term “Nation”; some, like the Nooksack, use “Tribe”; and one — the Swinomish — uses “Community.”
“Tribe” and “nation” are widely viewed as Western terms. The Native Governance Center, a Native-led nonprofit dedicated to assisting Native nations in strengthening their governance systems and capacity to exercise sovereignty, wrote that the use of “nation” best defines in modern terms what a Native nation is — an independent nation within a nation — and shows respect for sovereignty and the fact that Native nations each have their own systems of government.
‘Tribal member’ or ‘Tribal citizen’?
“Citizen,” rather than “member,” is becoming more in use. Members of Native nations are dual citizens of the United States and their respective Native nations. They can vote in tribal elections, exercise treaty-reserved rights and enjoy other rights of citizenship, just as citizens of the U.S. and other nations enjoy rights that come with citizenship in their countries.
Citizens of Native nations also come under the legal jurisdiction of laws and ordinances on their reservation and throughout Indian Country, which is defined in U.S. Code as “all land within the limits of any Indian reservation … all dependent Indian communities within the borders of the United States … and all Indian allotments.”
“I think ‘citizen’ is more accurate because it emphasizes that we’re affiliated with a nation, not just a club,” said Anthony Jones Sr. a Port Gamble S’Klallam citizen and attorney specializing in intellectual property and Native American law.
“I’m a citizen of my tribe the same way I’m a citizen of the United States. That said, I tend to use ‘member’ more often because it is more familiar and common,” Jones said. “But I will use ‘citizen’ in formal legal contexts, e.g., when consulting with other governments or writing to a court.”
Peter Boome, Upper Skagit, is an artist, attorney, judge and professor. “I grew up as a tribal member,” he said. “That being said, ‘citizen’ is more powerful. It supports sovereignty and communicates nation status. My vote is for ‘citizen,’ but I’m comfortable with ‘member’ too.”
Leslie Eastwood, retired executive director of the Samish Indian Nation, said, “I’ve done both, but now mostly say ‘citizen’ [which] infers belonging to a sovereign government, as opposed to member of a club or association. I know people have some reactions to ‘citizen’ being a Westernized term, but the strength of tribes today derives from our status as sovereign nations. We’re dual status citizens of [the] U.S. (or Canada) and our Tribe.”
“I also sometimes pivot to stating I’m enrolled Samish but also come from Klallam, Nuwhaha and grew up at Lummi, because all those connections define me more accurately,” she said. “I can imagine our ancestors historically explained themselves in this way, but would have said ‘reside at’ instead of ‘enrolled.'”
Tribes and legal jurisdiction
Tribes have jurisdiction over Indians but not non-Indians unless jurisdiction is granted by U.S. Congress. The Violence Against Women Act renewed by Congress in 2022 extends to Native nations the authority to arrest and prosecute non-Indians for certain crimes committed on tribal lands: domestic violence, violence against children, sexual violence and trafficking, stalking, obstruction of justice and assault of tribal justice personnel. In addition, tribal courts have jurisdiction over non-Indians in civil disputes.
Some tribal police departments, such as Swinomish and Tulalip, have gone through state accreditation and can enforce state law. That means a non-Native who violates a state law on a reservation can be arrested by accredited tribal police and turned over to county authorities for prosecution. If accredited tribal police are pursuing a suspect and the suspect leaves reservation boundaries, tribal police can continue the pursuit.
Twenty-four Native nations are members of the Northwest Intertribal Court System, which provides appellate, judicial and prosecution services. Inmates can be sentenced to a county jail with which a Native nation contracts, or sentenced to a correctional detention center operated by the Colville Tribes, the Nisqually Tribe or the Yakama Nation.
When the U.S. government agrees to hold title to land in trust for a tribal government, the U.S. is recognizing that land as being within that Native nation’s boundaries. The tribal government then has ultimate authority over that land for land use, public safety and other public services. The land is no longer city or county land and is no longer on the tax rolls of the neighboring jurisdiction.
Tribal governments do not pay property taxes on land that is in trust — just as cities, counties, state and the U.S. government do not pay property taxes on lands they own and manage on behalf of the public.
Non-Natives have treaty rights too
The 1850s treaties are not one-sided documents. Non-Natives also benefit from the treaty and have a responsibility to uphold it, wrote the late Billy Frank Jr., the environmental and treaty rights activist and long-time chairman of the Northwest Indian Fisheries Commission.
“Treaties are legal contracts between tribal and federal governments, and they are as valid today as the day they were signed. Even the U.S. Constitution defines them as ‘the supreme law of the land’,” Frank wrote in his widely distributed Being Frank column in 2007.
“People forget that non-Indians in Western Washington have treaty rights, too. Treaties opened the door to statehood. Without them, non-Indians would have no legal right to buy property, build homes or even operate businesses on the millions of acres tribes ceded to the federal government.
“Treaty rights should never be taken for granted — by anyone.”
— By Richard Arlin Walker
Read more in the Salish Current:
- “Tribal sovereignty education comes — slowly — to school curriculum,” May 5, 2022
- “Understanding the importance of the Point Elliott Treaty,” Jan. 28, 2021