A Meaningful Right to Fish Part One

By Bruce Davies

In 1970 a complaint was filed in federal court to clarify the right to fish that tribes had reserved in the Stevens Treaties. The case became United States v. Washington and has been in litigation ever since. Hundreds of sub-proceedings have been decided, dozens of appeals have been heard and the Supreme Court has considered the case twice.  Part One covers the period from treaty times to 1979 when the Supreme Court in the Passenger Vessel decision affirmed the1970  trial court decision of Judge Boldt.  Part Two in a separate volume describes  the next  forty-five years. Numerous sub-proceedings have been litigated over allocation, management of fish harvests, the right to harvest shellfish, the location of tribal fishing areas and the protection of fish  habitat. It is perhaps the most complex case in the American legal system. It profoundly influenced fisheries science and management and played an oversized role in the politics of the Pacific Northwest.

• Language: English
• Publisher: Bruce Davies
• Release date: Feb 2, 2021
• ISBN: 9781736542903

Bruce Davies

Bruce Davies is a retired lawyer who worked on a variety of legal issues and as counsel for tribes and other organizations. Since retirment he has written on contemporary Natifve American history

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A Meaningful Right to Fish

A Legal History of United States v. Washington

Part One

By Bruce Davies

Table of Contents

Introduction

1. The Stevens Treaties

2. Treaty Interpretation

3. State Regulation from 1886 to 1964

4. Federal Litigation to 1964

5. The Puyallup Litigation

6. Columbia River Litigation

7. Decision I – Pre-Trial and Trial

8. The Decision I Opinion

9. Debate

10. Resolution

Introduction

The 1974 decision in United States v. Washington [1] is often called the Boldt Decision because United States District Court Judge George H. Boldt was the author. It is called Decision I in this history because later federal court decisions often referred to it as Final Decision I (an abbreviated version is preferred by this author). It defined the Stevens Treaty fishing rights.

Judge Boldt hoped this opinion would finally settle the divisive problems of treaty fishing which for so long have plagued the citizens of this area. But he retained continuing jurisdiction to ensure the decision would be implemented. Paragraph 25 of the Permanent Injunction authorized new sub-proceedings in the case to handle disputes that might arise during implementation.

His hope that Decision I would settle the dispute was not realized. Decision I was appealed and between 1974 and 1978 the state, the federal government and the tribes returned to court nearly three dozen times to resolve implementation disputes. In 1978 Judge Alfred T. Goodwin of the United States Ninth Circuit Court of Appeals noted that:

The state’s extraordinary machinations in resisting the decree have forced the district court to take over a large share of the management of the state’s fishery in order to enforce its decrees. Except for some desegregation cases, the district court has faced the most concerted official and private efforts to frustrate a decree of a federal court witnessed in this century.[2]

Litigation over Decision I ended in 1979 when the United States Supreme Court issued Washington State Commercial Passenger Fishing Vessel Ass’n. [3] (Passenger Vessel). It affirmed most of the Decision I holdings. Justice John Paul Stevens noted that because of the widespread defiance of the District Court’s orders, this litigation has assumed unusual significance.[4]

After Passenger Vessel the parties continued to litigate. Two questions posed in the original complaint but deferred by Judge Boldt in 1974 - the role of hatcheries and the right to habitat protection - were litigated and the habitat issue reached an inconclusive result in Phase II. That issue would be relitigated in the next century in the Culverts Case. After Phase II the parties continued to use the case as a forum to resolve a wide range of natural resource conflicts. The attorneys slowly constructed a complex intellectual edifice with many rooms, trap doors, and secret stairways. In the basement they buried hidden passageways, gloomy cellars and snares for the unwary.

In 1990 a Ninth Circuit panel remarked, we cannot think of a more comprehensive and complex case than this. [5] The Northwest Indian Fisheries Commission (NWIFC) compiled a United States v. Washington database to support the research needs of tribal attorneys. The first version of the database included all the legal filings in the Federal District Court at that time. The database has been periodically updated since then to include all the documents filed in new litigation. As of June 2, 2000, the case's docket sheet included 16,943 filings. Each docket number (Dkt. No.) represents a separate legal document. The number of entries passed 20,000 in 2014. In a search conducted on Westlaw by this author in 2008, the full history citing reference database included 106 published court decisions that cited Decision I. The broader citing references database included 796 documents; 114 court decisions, 19 administrative decisions, 243 secondary sources (including law review articles), and 398 pleadings and these citations have continued to grow.

United States v. Washington has exercised broad influence. After Decision I, tribes in the Great Lakes region initiated similar litigation to clarify their treaty-reserved fishing rights. The Great Lakes cases also became complex, long-lived proceedings, with numerous interrelated federal court decisions, rancorous public debate and finally, the application of the co-management principles that were hammered out in western Washington.

One fisheries expert claimed that Decision I was one of two decisions that marked the advent of modern salmon law.[6] Douglas Harris, a Canadian legal scholar, believed Decision I had a profound influence on Canadian aboriginal law. The priority accorded conservation and then aboriginal food fisheries over commercial and sport in Canada closely correlated with the fishing rights hierarchy established by Judge Boldt.[7]

Alan Stay, one of the tribal attorneys who dedicated his career to litigating United States. v. Washington, claimed that the case was a catalyst for the modernization of tribal governments in the Pacific Northwest:

The Supreme Court made clear that, if tribes were to take their rightful place as co-managers, they would have to develop the scientific, enforcement, and legal infrastructures to carry out that role. Tribes rose to the challenge with the result that virtually all tribes party to the case developed modern government structures capable of managing the fishery while at the same time not undermining or destroying the traditions that underpinned the importance of fishing in the first place and for which the case was brought.[8]

From the early idealistic days, when tribal leaders and their lawyers struggled against state regulation of the treaty fishery, to the middle age of the case, when technocratic processes were created to allocate fish, and finally to the twenty-first century when the parties battled over habitat protection, litigation in United States. v. Washington continued.

Some judges tried to limit the kudzu-like growth of United States. v. Washington. In 2009 in a Ninth Circuit appeal of an intertribal dispute over control of a usual and accustomed fishing ground (U&A),[9] Judge Andrew Kleinfield wrote:

Intertribal allocations of the fisheries have historically been a matter for the tribes to resolve amongst themselves, as sovereigns … But not all problems have judicial solutions. And for disputes among Indian tribes, there is something to be said for a private dispute resolution procedure among themselves…

The original injunction, entered 35 years ago, was intended to resolve the treaty right fishing disputes once and for all. Yet this case has become a Jarndyce and Jarndyce,[10] with judges dying out of it and whole Indian tribes being born into it. The district court accurately stated fifteen years ago that ‘the court has become a regulatory agency perpetually to manage fishing’. Judges in the Western District of Washington have now been regulating fishing in Puget Sound for 35 years, with the aid of a Fishery Advisory Board that the court created. The Constitution does not establish the district courts as permanent administrative agencies. [11]

On March 19, 2018 Judge Michael Mossman of the District Court for Oregon dismissed United States v. Oregon, the companion case, but all the parties asked him to reconsider. He responded by issuing an order that continued the court’s jurisdiction but administratively closed it.[12] In 2019, in Sub-proceeding 17-01, a Ninth Circuit judge complained again that earlier judges were puzzled over why this Jarndyce and Jarndyce of an equitable decree remains in force at all … And yet, here we are.[13] This author thought that the Culvert Case (litigation over impairment of fish passage by state owned culverts described in the last chapter) would be the capstone to United States v Washington. It went up to the United States Supreme Court but in 2020 an equally divided court was unable to resolve the dispute. Instead of a final scene like in Bleak House, where Jarndyce v. Jarndyce finally ends and the attorneys leave the court house throwing legal papers in the air and shouting, its over!, the Culvert Case did not end the litigation. United States v. Washington continues.

Part I of this history tells how the basic legal principles developed, from the Stevens Treaties to Decision I and Passenger Vessel. Part II (in a separate volume) describes litigation that occurred after Decision I including Phase II and the other Sub-proceedings. It departs from the linear narrative of Part I. The growing number of simultaneously litigated Sub-proceedings resulted in a confusing weave of interconnected but independent ruling. To clarify the development of the law, chapters in Part Two cover the development over time of the law in a particular area. The bibliography for both parts is included at the end of Part Two.

There is a questionable break point between Chapters Four and Five. This point marks the beginning of modern treaty litigation. Alvin Josephy, in Now That the Buffalo’s Gone, chose January, 1961. On that date James and Louis Starr Jr., two Muckleshoot Indians, and Leonard Wayne, a Puyallup Indian, set gill nets in the Green River. They were arrested for violating state fishing regulations but acquitted. For Josephy, their arrests marked the start of the state drive to end treaty fishing. This initiative prompted federal intervention in treaty fishing rights litigation and led to Decision I.[14] I chose 1964 because Charles Hobbs published his first law review article on Indian hunting and fishing rights that year.[15] His article reflected growing scholarly interest in treaty fishing rights. He also called on the United States, as trustee for the tribes, to participate in treaty fishing rights litigation. When the United States began asserting treaty rights in court, the litigation became disputes between sovereigns in federal courts.

Hobbs’ second law review article in 1968 documented the dramatic change that had occurred in four years:

Much has happened since Indian Hunting and Fishing Rights appeared in 1964. There have been demonstrations by Indians in several places, some involving violence, and newspaper accounts and personal sources indicate that there have been perhaps 50 to 100 prosecutions of Indians throughout the country for violations of state hunting or fishing regulations. At least 18 written opinions have been handed down by various courts including two by the United States Supreme Court and other cases are pending in several states.[16]

By 1968, treaty hunting and fishing cases were being litigated in Idaho, Michigan, Minnesota, Montana, Nevada, Oklahoma, Oregon, Washington and Wisconsin.

This story is multi-layered. The initial proceeding, Decision I, was landmark litigation but then United States v. Washington grew into complicated and prolonged litigation over multiple aspects of Indian treaty fishing rights - the allocation of catch, harvest of hatchery versus wild salmon, treaty rights to harvest shellfish on staked and unstaked shellfish beds, the impact of culverts on salmon abundance, and other matters. I hope this history will serve as a resource for legal, technical and policy staff involved in treaty fisheries. But I hope it will also interest a broader audience.

[1] 384 F. Supp. 2d 312 (W.D. Wash. 1974)

[2] Puget Sound Gillnetters v. U.S. District Court, 573 F.2d 1123 (9th Cir. 1978)

[3] 443 U.S. 658 (1979)

[4] 443 U.S. 658 at p. 674

[5] United States v. Suquamish Indian Tribe, 901 F2d 772, 775 (9th Cir. 1990)

[6] Blumm 2002, 83

[7] Harmon 2008, 128

[8] Stay 2016, 21

[9] United States and Skokomish Tribe v. State of Washington and Port Gamble and Jamestown S’kallam Tribes, 573 F.3d 701 (9th Cir. 2009)

[10] The famous case in Dickens’ novel Bleak House

[11] 573 F.3d at p. 710

[12] Blumm 2019, 39

[13] United States v. Washington, No.17-35760, ____F.3d.____, (9th Cir. 2019)

[14] Josephy 1982, 177

[15] Hobbs 1964

[16] Hobbs 1968

1. The Stevens Treaties

The Stevens treaties were named for Isaac Ingalls Stevens, the territorial governor of Washington when the treaties were negotiated. But it might be more accurate to call them the Gibbs Treaties, for George Gibbs.

Isaac Stevens came from Puritan stock. In the 1640s John Stevens, an ancestor, was one of the founders of Andover, Massachusetts.[1] The family farmed in North Andover into the 1830s. Isaac’s father, a later John Stevens, held liberal views for his time. He observed the Sabbath but attended the Unitarian church. A newspaper reader, he subscribed to several and was well-informed on current events. He was interested in education, temperance and the anti-slavery movement. As an early abolitionist he participated in the underground railroad and sheltered at least one escaped slave. He held strong and ardent convictions, noble and lofty ideals of duty and philanthropy and had an intense hatred of wrong or oppression in any form. [2]

Isaac was born in 1818. Both Isaac and his son Hazard Stevens attended Phillips Academy in Andover. While studying at Andover, Isaac boarded with a lawyer and wanted to become a lawyer when he grew up.[3] At Andover, Isaac identified as a Unitarian in contrast to the more conservative Congregationalists who dominated the school. He also described himself as a loco foco abolitionist. Loco foco was the name given to the populist, or reform wing, of the Democratic party.[4]

After graduating from Andover Isaac attended West Point. He set out to become well-read and included Shakespeare, Milton, Byron and Addison among his favorite authors. One historian described Stevens as a prodigious learner with an amazing aptitude for math and engineering. He graduated first in his West Point class in 1835.[5]

After West Point Isaac’s first posting was to Newport, Rhode Island. Hazard Stevens in his biography of his father described Newport as a resort for the fashionable, cultivated and wealthy. According to Hazard the Hazard family, the Gibbs family, and others in this social circle were all more or less related. Isaac gained entrance to this society and married a Hazard. His wife was the daughter of Benjamin Hazard, lawyer and Rhode Island statesman. Her mother was a Lyman and a descendant in a line of six Rhode Island governors.[6]

George Gibbs, born in 1815, was three years older than Isaac Stevens. George’s mother, Laura (Wolcott) Gibbs, was from Connecticut where her father had been governor.

His father was a man of singular culture and talent. Brilliant in conversation, polished in manners, and of large and various experience of men and life, Colonel Gibbs was one of the marked men of his day, and his large mansion at Sunswick was the seat of a broad and elegant hospitality rarely to be met with in this country at the time.[7]

Colonel Gibbs purchased Sunswick Farms, an estate in what is now Queens, New York. The farm was located near a major oyster-growing area. George lived there when he was young. The Colonel was a friend of James Fenimore Cooper and Cooper lived at Sunswick Farms when he was writing The Last of the Mohicans. Young George was present when the Coopers lived at the estate.[8] Following the death of Colonel Gibbs the family moved into New York City.

The family often visited George Gibbs’s paternal grandfather in Newport, Rhode Island. The grandfather, also named George Gibbs, lived in a palatial mansion there and was known as the Merchant Prince of Rhode Island. He owned a fleet of sailing vessels and was involved in trade and shipping throughout the world. During these visits to Newport George Gibbs likely crossed paths with Isaac Stevens.

George Gibbs' maternal grandfather, Oliver Wolcott, succeeded Alexander Hamilton as Secretary of the Treasury during the Washington administration and continued in that position during the John Adams administration.[9] He provided George Gibbs with a link to another member of the closely related eastern elite; Spencer Baird. Baird was a descendant of the Biddles of Philadelphia. Nicholas Biddle was a head of the Bank of the United States II. He was an opponent of Andrew Jackson and circulated in the same high finance circles as Oliver Wolcott.

One of George Gibbs’ brothers, Alfred Gibbs, attended West Point and served as an officer in the Mexican and Civil Wars. Thus, he was a contemporary of Isaac Stevens in the United States Army. Alfred also was a close friend of George McClelland who later hired George Gibbs to work on the Pacific Railroad Survey.[10] Another brother, Wolcott Gibbs, was a professor at Harvard for 34 years and one of the founders of the National Academy of Sciences.[11]

In 1824 George left home to attend Round Hill School, located near Northampton in western Massachusetts. George Bancroft and Joseph Cogswell, a friend of Colonel Gibbs, had founded the school in 1823.[12] Bancroft attended Phillips Exeter Academy and then Harvard, received a PhD from Gottingen in Germany and returned to take a teaching position at Harvard. But he left Harvard to found the school. Later Bancroft became a famous historian and Cogswell went on to serve as the head of the Astor library at the time Gibbs organized the library of the New York Historical Society. Another famous scholar, Benjamin Pierce, taught at Round Hill from 1829 to 1831. Later he was a professor at Harvard, one of the foremost mathematicians in America in the Nineteenth Century, and father of Charles Pierce, the philosopher.[13]

Round Hill was intended to be a progressive school that would provide a liberal education:

The costs and aims of the school determined its character. A few day students came from Northampton, but most pupils were from well-to-do prominent families moved by progressive ideas, willing to experiment, and delighted to entrust their boys to professional care. [14]

George remained at Round Hill until he was sixteen.[15] After Gibbs completed his studies at Round Hill he was taken to Europe by his maiden aunt, Miss Sarah Gibbs, and for two years he enjoyed the advantages of foreign travel, observation, and study, the influence of which on his education and character was never lost."[16]

On his return from Europe, Gibbs attended Harvard and studied law. There he worked as a librarian in the law library and become close friends with Charles Sumner, who later became an abolitionist leader and radical Republican Senator. While at Harvard Gibbs wrote his first published book, The Judicial Chronicle. He finished his law study in 1838, the year of the famous Divinity School Address by Ralph Waldo Emerson. Gibbs was part of the intellectual milieu of Unitarian Boston partly because his uncle was Rev. William Ellery Channing.[17] Channing was a major force in Unitarian circles. George Gibbs lived in close proximity to the Channings during his student years at Harvard.[18]

After Harvard George Gibbs went to work in Prescott Hall’s law office in New York City. Prescott Hall was a wealthy barrister and financier.[19] But George developed an interest in historical studies and left law practice to serve as secretary and librarian for the New York Historical Society. He worked there from 1842 to 1846. In 1846 he published The Memoirs of the Administrations of Washington and Adams, edited from the papers of Oliver Wolcott, Secretary of the Treasury.[20]

It was through his work at the New York Historical Society that Gibbs became friends with Louis Henry Morgan. Morgan was born in 1818, the same year as Isaac Stevens, in Aurora, New York. He died in 1881. Morgan traced his ancestry back to the Mayflower. Some of his ancestors were leaders of the Connecticut colony in its early years and were founders of the city of Hartford. Morgan was a lawyer and one of the first anthropologists. He conducted ethnological research among the Iroquois in the 1830s and 40s and was active in a campaign to block Senate ratification of a treaty between the Senecas and the Ogden Land Company. The treaty, which was fraudulently obtained, ceded the remaining Seneca land in western New York. In 1846 Morgan collected petitions against the treaty and took a memorial to Washington, D.C., to present to Congress. As a result of his efforts, he was adopted into the Seneca Nation in 1847.[21]

From 1844 to 1846 Morgan gave several public readings of his anthropological studies on the Seneca. In 1846 he read a paper on the constitutional government of the Iroquois Confederacy at the New York Historical Society. Gibbs as Secretary of the Society probably may have been present at this reading. These studies formed the basis for Morgan’s The League of the Ho-de-no-sau-nee, which was published in 1851.

Chapter IV of Book II of the League is entitled ‘Future Destiny of the Indian’. It set forth Morgan’s thoughts on federal Indian policy. He felt that education and Christianity were the only means of rescuing Indians from the possibility of extermination. He believed that boarding schools operated by missionaries could be the foundation for improvement of conditions for Indians. These schools would prepare Indians for the exercise of property rights and citizenship. He also recommended dividing tribal land to give stimulus and ambition to individual Indians. He declared:

It is the great office of the American people to shield them against aggression and then to maintain such a system of supervision and tutelage as will ultimately raise them from the rudeness of Indian life and prepare them for the enjoyment of those rights and privileges which are common to ourselves.[22]

He hoped Indians would intermarry with whites, become subsumed into the white race, and add vigor to the white race over time. His policy recommendations were shared by other reformers of the time.

George Gibbs also met and befriended John Lloyd Stevens through the Historical Society. John Lloyd Stephens was one of the first archaeologists and one of the first scholars to uncover Mayan ruins in Central America. He wrote the extremely popular Incidents of Travel in Central America, Chiapas and Yucatan. His traveling companion Frederick Catherwood made drawings of the ruins that they visited that now are classical images. George Gibbs was inspired by Catherwood’s drawings when they were shown at the New York Historical Society when Catherwood and John Lloyd