Posted at 08:24 p.m.
PST; Sunday, February 7, 1999
25 years after the Boldt
Decision: The fish tale that changed history
Seattle Times staff reporter
Billy Frank Jr. may be the most
distinguished person you'll ever call Billy. He'll insist on it. Call
him Mr. Frank and he'll look around for someone else. Say "Hi
Billy," and a meaty brown hand will be instantly extended to you.
He's got fisherman's hands. At 67, he's
considered an elder statesmen for his people, with governors and U.S.
senators among his friends. He's collected awards for humanitarianism.
Above all, though, Billy Frank is a Nisqually Indian, which is to say, a
If you're a newcomer - one of the 2
million people who've come to Washington since the mid-1970s - you may
not know this old fisherman's story.
It's a fish tale, except it's all true
and involves more than catching a fish. The fate of Indian tribes and
the future of a once-rich industry hung in the balance. Race, politics
and Marlon Brando came into play. In the end, a major shift in power
took place, permanently changing the status of Indians in the United
In the middle of it all was a
conservative, white, bespectacled judge named George Hugo Boldt who, 25
years ago this week, handed down the mother of all fish decisions. The
ruling shocked the region, and the repercussions - and resentments -
"The fishing issue was to
Washington state what busing was to the East," says former U.S.
Congressman Lloyd Meeds of Everett. "It was frightening, very, very
As in any good tale, there were good
guys and bad guys, and for most of the story, Billy Frank was considered
a bad guy. He was arrested more than 40 times over three decades. He was
branded a renegade by then-Gov. Dan Evans.
His whole tribe was viewed as a band of
outlaws, as were all Indians who dared defy the state.
For most of this century, white society
did not look kindly upon Indians, when they looked upon them at all.
They were viewed as a nuisance, a hindrance to progress. In the
Northwest, tribes were widely seen as poaching communities - lawless,
primitive, skulking around in the dark.
"The Indian was a child and a
dangerous child," wrote a Washington state Supreme Court justice in
1916. "Neither Rome nor Britain ever dealt more liberally with
their subject races than we with these savage tribes, whom it was
generally tempting and always easy to destroy."
This was the world Billy Frank grew up
Of course, he never saw himself as a
poacher. To be an Indian in the Puget Sound was to have salmon swimming
in your veins. If you let Billy Frank tell the story, he might go back a
few thousand years through a hundred generations of Nisqually fishers.
He's squarely built with gray hair
pulled back under a scruffy wool cap. He wears bifocals. His face is
lined and leathery with the look of history about it. And the man can
talk. Stories spill out easily, and those meaty hands always seem to be
He swears a lot, mostly out of
exuberance. "Goddamn, it's a beautiful day!" he might say.
When he talks about "the mountain," he's referring to Mount
Rainier. "The river" means the Nisqually River.
He's lived his whole life in the 78
miles between the mountain and the river's mouth, and that's where he's
headed now, with two guests, in his 17-foot aluminum boat.
The trip from his house to the mouth of
the river takes 20 minutes. Harbor seals and sea lions pop their heads
out of the water as the boat passes. Three-quarters of a mile upriver,
just before the old Pacific Highway bridge, Billy Frank points to a
gravel bar on the opposite bank.
"The first time, I was cleaning
fish right there," he says.
He recalled it was a cold December
night, just before Christmas 1945. He was 14. He had just emptied his
net of a load of chum salmon and was working on his knees in the dark
when two bright lights flashed on him.
"You're under arrest," a
voice said. The boy ran and stumbled. Two game wardens took him by the
"I told them to leave me alone. I
Today he can point to dozens of spots
along the river and tell like stories: of having boats and nets
confiscated, of being chased and tear-gassed, tackled, punched, pushed
face-first into the mud, handcuffed and dragged soaking wet to the
Like his father before him, Billy Frank
lived like an outlaw, fishing at night and always on the lookout for men
in uniforms. Indians all over the Northwest lived the same way.
When brought to court, their sole
defense was that they had a right to fish according to century-old
treaties signed with the U.S. government.
"Most of them didn't have
lawyers," said Al Ziontz, a Seattle attorney who came to represent
several Northwest tribes. "The Indians would cite the treaties, and
the state would brush them aside, acting like the treaties were just
pieces of paper that somebody found in a trunk."
The irony was that those pieces of
paper were never the Indians' idea; they were imposed by a fair-skinned
people too powerful to fight. Eventually, the squiggly words on those
pages would be the Indians' only weapons.
Billy Frank maneuvers his boat into a
muddy creek just west of the river. Carcasses of spawned-out salmon line
the banks. A quarter-mile up the creek, he points to an isolated Douglas
fir, now a snag, rising a hundred feet into the air. Interstate 5 roars
a short distance away.
"Treaty Tree," he says,
Under that tree, in 1854, the process
began ending life as the 6,000 Indians of the region had lived it for
thousands of years. Billy Frank's grandfather, Kluck-et-suh, was a boy
at the time, and played under that tree and fished this water, then
called Medicine Creek.
Working on behalf of the U.S.
government, Territorial Gov. Isaac Stevens, a stump-sized, single-minded
dynamo of a man, negotiated a rapid-fire series of treaties with the
region's Indians for the sole purpose of taking their land so white
settlers could move in.
Starting with the Medicine Creek treaty
signed under that 100-foot Douglas fir, Stevens pushed through six
treaties in two years. The Indians lost most of Western Washington
seemingly overnight. They were forced onto reservations, some as small
as a few hundred acres.
"Isaac Stevens saw treaty-making
as a command-and-obey process, not a negotiation," writes author
and University of Colorado law professor Charles Wilkinson in an
upcoming book, "Messages From Frank's Landing." "He knew
what he wanted going in and did not plan on departing from his
The treaty at Medicine Creek was
The two-page document was written in
advance, in English, and presented to the Nisquallys, Squaxins and
Puyallups, who knew little English. Stevens then insisted the talks be
conducted in Chinook jargon, a mixed tongue of English, French and
Indian words used for trade.
Asks Wilkinson: How could the Indians
possibly know the transcendent meaning of what they were signing?
One interpreter at Medicine Creek,
asked by Stevens whether he could get the Indians to sign, assured the
governor, "I can get these Indians to sign their death
The treaties might have been that for
the Indians had it not been for a clause in each of them guaranteeing
tribes the right to fish ". . . at all usual and accustomed grounds
Stevens had no qualms about Indian
fishing. Fish and game were abundant to the point of seeming limitless.
What did it matter? If anything was to become extinct, it would be the
"Essentially, they hoped we'd all
die off," said Joe Waterhouse, a Jamestown S'Klallam Indian and a
student of treaty history.
Many tribes came close. Smallpox,
random violence and relocation devastated Billy Frank's tribe. Nisqually
numbers fell from 2,000 in 1800 to fewer than 700 by 1880. Their chief,
Leschi, a charismatic leader who led a rebellion against Stevens, was
hanged at Fort Steilacoom.
And their reservation grew smaller and
smaller as the needs of the new state of Washington expanded.
By the turn of the century, the
Nisquallys, like other Puget Sound tribes, clung to the
single-most-important thing they had left from their ancient culture:
their relationship to the salmon of the rivers.
The salmon fed them physically and
spiritually and brought in what little money they had. Access to the
rivers meant everything.
Salmon suffer, Indians blamed
In the first year of statehood, 1889,
legislators, in the name of conservation, closed six rivers to salmon
fishing. All were Indian fishing grounds. The state eventually banned
net fishing in all rivers, except the Columbia, effectively outlawing
the Indians' main way of catching fish.
Over the next 50 years, the number of
white commercial fishermen exploded, industrializing the fisheries and
prodding the state to come down harder on the Indians, now seen as
Non-Indian commercial fishers caught
salmon by the millions of tons in the Pacific and Puget Sound, but the
state blamed declining fish runs on Indian netting and lawlessness. The
Indians didn't follow state-mandated seasons, didn't get licenses or
heed catch limits.
Tribes claimed the real culprits in the
salmon's decline were commercial fishing, dam-building and logging.
Decades of research would eventually corroborate this.
In reality, Indians, still
river-fishers, caught only what was left over. According to the state's
own figures, Indians were catching less than 5 percent of the
harvestable salmon in the region at the height of the fish wars.
Even to catch that, "we had to go
underground," Billy Frank says. "To survive, to continue our
culture, we had to become an underground society."
By the 1960s, the state's sporadic
arrests turned into a relentless series of raids and stings, much of it
focused on the Nisqually River. The river had become the locus of Indian
Revolution was in the air all over the
country, and Northwest Indians, seizing the "sit-in" tactics
of civil-rights activists elsewhere, began staging "fish-ins,"
in which protesters would openly fish in defiance of state laws.
One of the "renegade
leaders," as the state labeled him, was a crew-cut, hell-raising
Nisqually Indian named Billy Frank, son of Billy Frank Sr., himself a
veteran of the fish wars. Many fish-ins took place on the family's
6-acre riverfront parcel known as Frank's Landing.
The Landing became the moral center of
`A getting-arrested guy'
Billy Frank was no longer the
frightened 14-year-old arrested upriver in 1945. He'd worked all over,
struggled with and overcome a drinking problem, married and fathered
children. He'd spent two years in the Marine Corps and saw enough of the
world to know right from wrong. But with only a ninth-grade education,
he didn't see himself arguing fine points of law.
"I wasn't a policy guy. I was a
getting-arrested guy," he likes to say.
The state responded to the fish-ins
with a military-style campaign, using surveillance planes, high-powered
boats and radio communications. At times, game wardens resorted to tear
gas and billy clubs. And guns.
The confrontations were telecast
Soon a parade of celebrities came to
support the Indians, the most famous among them, Marlon Brando and Jane
Fonda. When Brando was arrested during a 1964 fish-in on the nearby
Puyallup River, he told reporters he was just "helping some Indian
The violence escalated. The state
became more aggressive, and Indians fought back, using fists and stones.
Billy Frank recalls an incident in
which a state boat rammed his prized canoe - carved by an Indian friend
up river, Johnny Bob - dumping him in the water. Billy almost drowned.
The state confiscated the canoe.
Indian activist Hank Adams was shot in
the stomach while fishing, but survived. He claimed the assailants were
white vigilantes, but police never pursued the case.
"It was a frightening time,"
said former Congressman Meeds, whose district included Everett and the
San Juans, white fishing strongholds.
Meeds, 71, once highly popular, saw his
constituency turn against him for his early support of the tribes. He
decided not to run for a seventh term when it became clear he would
lose. Other lawmakers felt similar pressure.
In one of the most dramatic raids of
the fish wars, this one in September 1970, a squadron of helmeted Tacoma
police used tear gas and clubs to arrest 59 protesters camped on the
Puyallup. Gunshots were fired, and Indians were beaten and brutally
That same month, the U.S. government
finally intervened. The government, on behalf of the tribes, filed suit
against the state of Washington. After all, it was the government's own
documents - those pieces of paper pushed by Isaac Stevens and ratified
by Congress - the Indians constantly invoked.
Assigned to hear the case was U.S.
District Court Judge George Hugo Boldt.
Billy Frank remembered the name. Six
years earlier, Billy and five friends had spent 30 days in jail for
staging a fish-in. Their attorney tried to free them on grounds of
illegal arrest but failed. One of the judges who denied their release
was George Boldt.
What else was known of Boldt was not
encouraging for the tribes. He was in his late 60s, an Eisenhower
appointee and a conservative with no background in Indian law. Most
worrisome was the native Montanan's reputation as an avid sport
Sport-fishers as a group blamed Indians
for the drop in steelhead runs.
Over the next three years, Boldt
presided over a highly complex trial with a law-and-order firmness, but
not without charm. Retired Times reporter Don Hannula, who followed the
trial, tells of a witness who described the thrill of landing a
"If you've ever made love - that's
the nearest I can express it," the witness told the judge. Asked
where he fished, the witness clicked off a long list of rivers. Judge
Boldt, peering above his horn-rimmed glasses, replied: "That
doesn't leave you much time for making love, does it?"
Make Love, Not War was the slogan of
the times, but what followed both in and out of Boldt's courtroom was a
classic Western showdown.
Outside were pickets and hangings in
effigy. Inside, lawyers debated the central question: Could the state of
Washington regulate the fishing practices of Indians who signed treaties
with the U.S. government?
But the underlying question was more
far-reaching: To what extent could tribes, as separate nations within a
nation, rule their own people and control their own destinies?
Both sides relied on the treaty clause
that read, "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."
The state interpreted the words
"in common with all citizens" to mean that Indians, like all
other residents of the state, must be subject to state control. The
Indians argued the treaties entitled them to fish unimpeded at any of
their "usual and accustomed places."
Testifying at the trial were Indians
young and old, like Billy Frank and his father, who told stories passed
on to them by their fathers and grandfathers. They talked of the time
before white people came, and of the generations of Indian fishers that
went back, according to the their view, to the beginning of time. For
"He listened to us," Billy
Frank says of the judge, in what may be his highest praise. "He
listened very carefully."
On Feb. 12, 1974, Judge Boldt handed
down his 203-page decision.
The Indians won. Overwhelmingly.
Boldt, relying on an 1828 edition of
Webster's American Dictionary, interpreted "in common with" to
mean the Indians were entitled to half the harvestable salmon running
through their traditional waters. Fifty percent! The ruling shocked even
the Indians, who made up only 1 percent of the state's population.
Furthermore, Boldt made the tribes
co-managers of the state's fisheries. With the drop of a gavel, tribes
transformed, in the eyes of the law, from underground poaching societies
to at-the-table equals with the state authorities that had persecuted
them for so long.
Acrimony still festers
The ruling stuck. It withstood years of
sometimes-violent protest by non-Indian fishermen. It withstood state
appeals argued doggedly by then state Attorney General Slade Gorton. The
Court of Appeals and eventually the U.S. Supreme Court upheld Boldt's
A decade of tumultuous adjustments
passed before the Indians started harvesting their 50 percent. The state
and the tribes eventually learned to work together, the tribes
represented by the Northwest Indian Fisheries Commission, of which Billy
Frank has been chairman for almost 20 years.
The 50-50 formula was extended to
shellfish and game, but not without rancorous opposition.
Many non-Indian fishermen still resent
Boldt, still curse him and the tribes. And a whole new group, waterfront
property owners - angered by court-approved Indian harvesting of
shellfish on their tidelands - have joined the campaign to roll back
what Boldt unfurled.
"Boldt made a bad decision,"
said Tom Nelson, 61, of Renton, and a leader in the sport-fishing
community. "Most people in the state - and I go around speaking to
a lot of groups - think Boldt made a bad decision."
Nelson's sport-fishing group wants to
put a "Ban All Nets" initiative on the November ballot. Though
it wouldn't immediately affect tribes, observers say tribes are the
ultimate target. Up to 80 percent of all net-fishing in Puget Sound is
done by Indian fishers.
Salmon continue to decline. Despite its
mandate to better manage the state's fisheries, Boldt didn't save them.
No court decision could. Fisheries all over the world are in crisis for
the same reason: too many people fishing, polluting and destroying
habitat. Or simply too many people.
"The number of fish dropped while
we were in the courtroom arguing over who got the fish," said David
Getches, lead tribal attorney in the Boldt case.
Most tribes are still poor.
But the Boldt decision reverberated
throughout Indian country because, in symbol, it had less to do with
allocation of fish than with allocation of power. It elevated tribal
treaties to at least the level of state law, and gave Indians a new
Boldt was a great boost in the
direction of tribes ruling themselves. It coincided with a Nixon-era
infusion of federal money intended to strengthen tribal governments.
The result has been both a political
and economic awakening, seen in arenas as divergent as tribal casino
resorts in Connecticut, tribal police powers in New Mexico and online
tribal lotteries in Idaho.
Tribes nationwide have become a force
to be reckoned with.
In Washington, the Muckleshoot tribe
held up a city of Tacoma plan to build a pipeline along the Green River,
ancestral fishing grounds. The project went through but only after
Tacoma agreed to pay the tribe $20 million, build a tribal fish hatchery
and hand over 100 acres.
In Utah, the Goshute Indians, over the
vitriolic objections of its non-Indian neighbors, plan to lease part of
their reservation for nuclear-waste storage. The tribe, hoping for a
multimillion-dollar boon, says it's their right as a sovereign nation.
In New Mexico, the city of Albuquerque
has agreed to spend $300 million on cleaning up the Rio Grande River to
meet the water-quality requirements of the Isleta Pueblo, which manages
part of the watershed.
"Without question, the Boldt
decision is among the one, two or three most-significant decisions in
the history of Indian law. It was that profound," said author
"And Billy Frank was the heart and
soul of it. He was the image of the defiant Indian standing up for
something that was right and true."
After a long day of showing his two
guests around the river, Billy Frank's boat runs out of gas. It stalls,
and is carried swiftly downstream on a powerful current. The boat spins
once, twice. And from out of Billy's mouth comes a noise that sounds
He grabs a paddle, and eventually
guides the boat steadily downriver to Frank's Landing. "We made
it," he says with mock drama. "We're safe!"
For him, it was just another hairy ride
on the river, as his whole life has been. He's traveled an extraordinary
From skulking in the rivers, he and his
people have come to oversee them. Instead of arrest warrants, he gets
invitations to speak - to this congressional panel or that Senate
committee, to the world conference of Amnesty International.
He's been awarded the Albert Schweitzer
Prize for Humanitarianism, joining past winners, former President Jimmy
Carter and former U.S. Surgeon General Dr. C. Everett Koop.
But his most prized acquisition has
been the old shovel-nosed canoe that his friend Johnny Bob carved 40
years ago and for which Billy paid him 15 salmon - the one state wardens
confiscated after ramming him in the river in 1964.
In a gesture of reconciliation, the
state gave it back to him for his birthday in 1980. Then, a few years
ago, a massive flood carried it away, and Billy lost it again. But it
came back, this time returned by a niece who found it downriver.
The canoe now hangs ceremoniously from
the ceiling at the new We He Lut Indian school on the Landing. Billy
Frank and his two guests study it.
He tells its story and unwittingly sums
up his own life. He says it was formed by old hands in the backwoods of
the Nisqually, that it began in the river and will end there, and that
it's surprised everyone with its resilience.
"There it is," he says,
Alex Tizon's phone message number is
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