A 50-Year Legacy of Excellence
As the 50th anniversary of the Boldt Decision approaches, we review the legacy of pioneering UW Law professor Ralph Johnson and his impact on the most complex case in Native American law history.
On February 12, 1974, U.S. District Court Judge George H. Boldt made a ruling in United States v. Washington, a case widely considered the most comprehensive and complex case in Indian law. Boldt’s initial ruling was so significant in its affirmation of Native American tribes’ fishing rights in Washington that it is famously called “The Boldt Decision.”
Under the new Washington territory’s first governor, Isaac Stevens (1818-1862), there were 10 treaties made with the Natives. The tribes reluctantly negotiated with Governor Stevens, partly because of different languages across tribes and difficulties interpreting the settlers’ use of Chinook jargon. However, one thing to which the tribes held fast was their off-reservation fishing rights. That was fine with the settlers at the time, as they were more interested in farming and logging, than in taking fish. Therefore, multiple treaties affirmed the tribes’ off-reservation fishing rights with identical language stating: “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.”
Over time, the settlers’ interests in taking fish would change. As settlement rapidly increased and large commercial operations developed, the catch of the tribes paled by comparison to the canneries’ sophisticated methods. The state started to impose regulations and fishing fees against the tribes, who eventually sought legal remedies.
For the next seven decades, a hodge-podge of court decisions, often inspired by the whims of the court or public sentiment, were randomly made in favor of the tribes or of the state. When police arrests began for Native Americans fishing off their reservations, even actor Marlon Brando got in on the action. Brando was arrested during a March 1964 fish-in that became a common method of protest inspired by the Black civil rights movement.
Finally, the mixed trail of verdicts came to a head with the case ruling of the Boldt Decision. Judge Boldt’s ruling upheld the validity and enforceability of the Stevens Treaties of 1854-1856 to the current day, as well as the tribes’ right to take half of the available fish every year in the state of Washington.
“The Boldt Decision really stands for the proposition that the treaties are the law, and they have to be followed, even as the tribes and the world have changed. The treaties never ended at any point in time,” said professor from practice Eric Eberhard, associate director of the UW Native American Law Center (NALC). “The state took the position that the tribes only had the rights to obtain a license from the state and to fish within the limits set by the state. Therefore, the Boldt Decision created the basis for a system of tribal management of half of the fishery and state management of half of the fishery. And that was revolutionary at the time.”
In 1974, there was no law school professor in the United States teaching Native American law except for one Ralph W. Johnson at the University of Washington School of Law. Johnson courageously used his professional status and intellect to defend the rights of Native American fishermen when this was neither respected nor yet viewed as politically correct.
Shortly after writing his decision, Judge Boldt wrote a note to Professor Johnson, saying, "I want to express my personal appreciation to you for the fine Law Review Article you published on Indian fishing rights in the Washington Law Review. It was a great help in providing me with a useful framework for an analysis.”
Boldt cited Johnson’s article “A United States Supreme Court Error” in his decision, aligning with Johnson’s arguments that the U.S. Supreme Court case Puyallup Tribe v. Department of Game vindicated the off-reservation treaty fishing rights of Puget Sound tribes.
The Boldt Decision was subsequently upheld by the Ninth Circuit and U.S. Supreme Court.
Johnson was the go-to legal advocate for tribes seeking to protect their treaty rights in the 1970s and ’80s. He developed the first Indian law class at UW and introduced Indian law to the Harvard Law School curriculum as a visiting professor. Multiple generations of Johnson’s alumni now advocate for tribal clients and legislation, counsel governments and judge cases. His legacy remains with the Native American Law Center (NALC) at UW Law, established in 1998, which is a resource for Indian tribes, other governments, and individuals with an interest in developing federal Indian law.
“Following the lead of Professor Johnson’s example, the NALC remains committed to service and education focused on legal issues facing Native American tribes and individuals,” says Charles I. Stone Professor of Law Monte Mills, who serves as NALC director. “As the original sovereigns of the land with rights reserved through treaty promises with the United States, Tribal Nations occupy a unique place in American law and one of the highest callings of the legal profession is using the rule of law to recognize and support those rights,” added Mills.
Since the original Boldt Decision, litigation has continued for the past 49 years in sub proceedings to define which fish are included — such as shellfish, which the federal court later affirmed — and what constitutes tribal rights under the treaties. Sub proceedings from the past couple decades have included the question of whether the right to take fish includes the right to protect the ecosystem where the fish thrive. For example, when the state builds highways, they put in culverts denying salmon access to their spawning places, causing an overall reduction in salmon supply. Since the culverts change the environment, the federal courts have determined that the state must replace the culverts.
Fifty years after the Boldt Decision, the tribes want the state to remove culverts to create more natural habitat for the salmon and to help restore the salmon runs. Because of toxins going into the water, there are concerns over water quality and whether the fish are ill and dying due to water pollution.
Eberhard said, “There will be anniversary ceremonies in February commemorating Judge Boldt’s decision, but from the tribal point of view, they won't really be celebrations. The salmon fishery is not doing well, and there's real concern among the tribes that the fish could be headed toward extinction if more is not done to protect the fish and to restore their habitat.”
The Boldt Decision was the focal point of the 36th Annual Indian Law Symposium in September 2023, hosted by UW Law around the theme: Setting the Stage for Boldt at 50: Law, Policy, and the State of Cascadian Fisheries. In anticipation of this symposium, UW Law librarians Maya Swanes and Pearl McCrea undertook a project to digitize and make public hundreds of previously unavailable court documents related to the Boldt Decision and subsequent proceedings. Swanes also developed an online exhibit ahead of the symposium.
“We are in the unique position of having the print briefs for many of these proceedings in our collection,” said McCrea. “Many of the briefs in our collection are not widely available digitally or in print. Now that they're digitized and housed in our institutional repository (Digital Commons), we can make them freely available to everyone.”
- Learn more about the Native American Law Center at UW Law.
- View the Gallagher Law Library’s digital collection of documents related to the Washington State tribal fishing rights case United States v. Washington.
- View the online exhibit created for the Indian Law Symposium.
- Browse the collection of recordings from the 36th Indian Law Symposium.
- Read the Washington State Courts’ 50th Anniversary of Boldt Decision article by Willie Frank III, chairman of the Nisqually Indian Tribe.
- Read about the Indigenous Rights Law Concentration in our Sustainable International Development LL.M. program.