Reviewed:
Treaty Justice: The Northwest Tribes, the Boldt Decision, and the Recognition of Fishing Rights
by Charles Wilkinson
University of Washington Press, 353 pp., $34.95
On the Swamp: Fighting for Indigenous Environmental Justice
by Ryan E. Emanuel
University of North Carolina Press, 291 pp., $99.00; $22.95 (paper)
Billy Frank Jr. was fourteen when, in December 1945, he was fishing for salmon in the Nisqually River near Olympia, Washington, and state game wardens arrested him for the first time. Over the next twenty-five years he was arrested (and often jailed) more than four dozen times, despite his airtight defense: he fished under the terms of the Medicine Creek Treaty of 1854, one of ten treaties negotiated by Governor Isaac Stevens in which the US promised tribes in the Puget Sound area of the Pacific Northwest the right to fish where they’d always fished “in common with all citizens of the Territory.”
In 1965 the intensity of the arrests changed. Frank was fishing the Nisqually with his brother-in-law when armed wardens in a high-speed motorboat rammed Frank’s cedar canoe. “They got all kinds of training and riot gear—shields, helmets, everything,” Frank told Charles Wilkinson back in the 1970s, when Wilkinson was a young attorney with the Native American Rights Fund. “These guys had a budget. This was a war.”
In the mid-1960s Frank was one of several young activists in the Pacific Northwest who had begun staging “fish-ins,” acts of protest inspired by Black civil rights sit-ins but, a participant wrote, “done in a distinctive Indian way.” Native activists, with their families and allies, fished at riverside encampments, pressing their own fishing rights against state fishing prohibitions, resulting in arrests and news coverage and increasing brutality on the part of the state. The violence peaked in the summer of 1970, when state and local police raided an encampment on the Puyallup River in Tacoma, using rifles, tear gas, and batons to arrest dozens of men, women, and children.
One of the bystanders gassed during the melee was Stan Pitkin, the US attorney for western Washington who, days later, filed a complaint, United States v. Washington, on behalf of tribes that had signed the so-called Stevens treaties. The four-year trial resulted in a resounding victory for tribal sovereignty in the United States, reasserting the tribes’ fishing rights under the treaties and affirming those treaties as living documents—a verdict known today as the Boldt decision, named for its author, Judge George Boldt.
Frank served as the chairman of the Northwest Indian Fisheries Commission, the organization established by the 1974 ruling to aid the tribes in managing fisheries—a post he held for more than thirty years. In 2013 he asked Wilkinson, his old friend, by then an expert in federal Indian law, to write a book about the case. Wilkinson died in 2023, but the book he completed, Treaty Justice, deftly lays out one of the twentieth century’s most significant and underestimated legal decisions. “Judge George Boldt’s ruling…is a landmark in the American civil rights movement,” Wilkinson writes. “It belongs in the same company as Brown v. Board of Education and a select few other court cases in terms of bringing justice to dispossessed peoples.”
The trial began with a question: What were the circumstances under which these Pacific Northwest tribal nations signed the treaties negotiated by Isaac Stevens? A Massachusetts-born army engineer, Mexican-American War veteran, and railroad surveyor, Stevens was appointed governor of the newly established Washington Territory by his fellow veteran President Franklin Pierce in 1853. US expansion had slowed while Congress debated slavery’s future in the new territories, though Pierce still coveted Alaska, Hawaii, and Cuba and was eager to quickly solidify possession of what would become Washington, Idaho, and part of Montana. In the Northwest, the Donation Land Act of 1850 and its companion legislation, the Oregon Indian Treaty Act, called for the territorial commissioners to extinguish Native claims—declaring them null and void for the sake of white settlement—a task Stevens took on with alacrity.
The tribal cultures and economies Stevens encountered in the Puget Sound area were as varied as the region’s ecology. Around what are today called the San Juan Islands, the Lummi set reef nets in kelp beds to catch salmon in the northern sound’s open waters. To the south, the Nisqually fished the rivers and managed the prairies, burning forest to encourage grazing habitat for deer and elk. On the Olympic Peninsula, the Quinault caught salmon in their glacial rivers while harvesting shellfish along the Pacific coast, and on the peninsula’s northwestern tip, the Makah, whose warriors had repelled British sailors a century earlier, also caught salmon in their tidal rivers but focused on halibut and famously whales.
From 1820 to 1840, Wilkinson explains in Treaty Justice, the tribes had managed to coexist peacefully with British traders. But as the late Nisqually historian Cecelia Svinth Carpenter noted in Stolen Lands: The Story of the Dispossessed Nisquallies (2007), “The peacefulness of the scene fast disappeared when American families started arriving and building fences around choice Nisqually land.”
Stevens’s initial plan was to move all the tribes to a single reservation, an idea they quickly rejected. George Gibbs, a Harvard-educated ethnographer, suggested that tribal leaders would consider multiple reservations if guaranteed
the right of taking fish, at all usual and accustomed grounds and stations…, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting, gathering roots and berries, and pasturing their horses on open and unclaimed lands.
The “final settlement,” as Stevens called it, was conducted in Chinook Jargon, a Pacific coast trade language of an estimated five hundred words, the effective use of which, a scholar noted, “depends on the ingenuity and imagination of the speaker.” Translating was Frank Shaw, a settler who, Wilkinson writes, “had only a moderate grasp of the Chinook Jargon and knew no Indigenous languages.”
Treaties were viewed by the US as a “temporary expedient,” in the words of the historian Alexandra Harmon, and in 1887 the General Allotment Act designated vast amounts of tribal land “surplus” based on the assumption that increasingly Americanized tribes would give up hunting and fishing communal lands for cultivating small private farms. Henry Dawes, the Massachusetts senator who wrote the act, saw collective ownership as Native America’s fatal flaw: “There is no selfishness, which is at the bottom of civilization.” Over the next half-century an estimated 90 million acres of Native land were taken by the US.
The effect of the Stevens treaties, for tribes in the Puget Sound area as elsewhere, was what Wilkinson calls “the long suppression.” “Native fishing rights, so central to tribal existence,” he explains, “were denied or scraped to the bone.” For decades private canneries and even dams decimated salmon runs, while US Indian agents forbade indigenous practices and sent Native children off to English-only Christian schools.
Then in 1953 the US adopted a new policy of “termination,” moving to end federal responsibilities to the tribes entirely, regardless of treaties. Within twenty years Congress terminated the recognition of 109 tribes in Oregon, California, Wisconsin, and elsewhere, affecting more than 11,000 Native people and taking upward of 1.3 million acres of land. No tribes were terminated in Washington state,
but as salmon dwindled, commercial and sports fishermen focused state enforcement on tribal fishers—despite the fact that when Billy Frank’s canoe was rammed on the Nisqually by wardens in a speedboat, the tribes were taking only 6 percent of the total Puget Sound harvest.
In the 1950s and 1960s a confluence of events revitalized Indian country. Native American veterans returned from World War II and the Korean War and attended college; tribes took control of programs formerly administered by the Department of the Interior’s Bureau of Indian Affairs, in schools, hospitals, and resource management.
In the Puget Sound area, leaders of the Muckleshoot, Puyallup, and Nisqually Nations began to meet with attorneys about their fishing rights. In 1963 Makah leaders interviewed Al Ziontz, a Seattle lawyer, who said, “If I were representing the Makah Tribe, the principle of tribal sovereignty would be the way I would go about defending your rights.” Ziontz knew little about Indian law—no law school taught it, despite tribes being, after the federal and state governments, the third of the three sovereign powers in the US constitutional system. Sovereignty made the tribes, as Chief Justice John Marshall wrote in 1832, “distinct political communities, having territorial boundaries, within which their authority is exclusive.”
What happened next was a powerful mix of scholarship and organizing, with lawyers and activists tag-teaming to move the tribes toward a confrontation with the state. Hank Adams, an Assiniboine and Sioux activist who grew up on the Quinault Reservation—Wilkinson calls him “razor-sharp brilliant and driven”—set up at Frank’s Landing, a riverside encampment named for Billy Frank’s father, where, with Janet McCloud (Tulalip) and Ramona Bennett (Puyallup), he organized the Survival of the American Indian Association. Starting in 1964 the group turned fishing arrests into civil rights actions.
In the group’s first years celebrities (including Marlon Brando and Dick Gregory) were arrested at protests, as Adams organized support from Friends groups, Black Panthers, and the Southern Christian Leadership Conference. A planned five-day action at Frank’s Landing in 1968 lasted for months; in addition to eating the salmon they caught, the activists sold some to fund the encampment. By the time the police raided the Puyallup fish-in, in 1970, the young radicals were supported by the Puyallup tribal council, which sent a police force to protect the activists, who were fired on at random by vigilantes. On the day of the raid, Ramona Bennett said to game wardens approaching in a boat, “Touch our net and we’ll shoot you!”
In suing the State of Washington, Stan Pitkin, the Nixon-appointed US attorney, was working for what he called “a case to end all cases.” The time seemed right; two months before, Nixon had issued his special message to Congress on Indian affairs, which called for tribal “self-determination” and declared the termination policy “morally and legally unacceptable.” (Nixon, who advocated for land returns to tribes, counted his football coach at Whittier College, Wallace Newman, a Luiseño tribal citizen, as a mentor, but the president was likely also responding to Red Power actions, like the occupation of Alcatraz in 1969.) Judge Boldt was a bow-tie-wearing conservative who, just before the trial, had jailed Vietnam War protesters, making the tribes’ legal team nervous. But as the weeks passed, tribal attorneys sensed Boldt’s attentiveness and were relieved to spot Vine Deloria Jr.’s 1969 best seller, Custer Died for Your Sins: An Indian Manifesto, in his chambers.
For the first year of the trial, Judge Boldt took testimony on the treaties’ historical background. The State of Washington’s attorneys claimed that in 1854 the tribes were in “rapid cultural decline,” and they argued that the fishing rights defined by the Stevens treaties were moot. The plaintiffs’ expert—Barbara Lane, a Canadian anthropologist who had previously worked with numerous Northwest tribes—described a vibrant, adaptive culture, past and present. “They were not declining into nothing,” she said. Lane showed how the tribes had not only adapted to the new settlers but offered them ways to survive, with new kinds of food, shelter, and clothing. North of the Strait of Juan de Fuca, the British settlers in Victoria burned whale oil purchased from the Makah.
Next, twenty-nine tribal members testified to show that ancient cultural practices were also contemporary. Witnesses spoke in their own languages and recounted decades of abuse by Indian agents while displaying a generational fortitude that, trial participants noticed, captivated Boldt. There was also humor, another survival trait. Asked whether off-reservation fishing of winter chum salmon was prohibited by the state, Billy Frank said, “Well, I have been in jail enough times to say it probably is.”
As the trial progressed, a new facet of the case emerged: “the ambition,” Wilkinson writes, “of tribes to regulate their own members and to engage in salmon management.” Boldt’s ruling could add tribal oversight to federal and state oversight, and he now worked to decide whether the tribes could manage their own fisheries. The great revelation for nontribal citizens was that the tribes not only could but often already did so better than the region’s newcomers. In addition to a young Quinault fisheries expert finishing up his Ph.D., Boldt heard from Horton Capoeman, sixty-eight, who was bilingual and had lived on the Quinault Nation’s reservation his entire life, save for his US Army service. He had served on the tribal council, on the business committee, and as a tribal judge; his testimony detailed how the tribe had for generations managed Native and non-Native fishers when they either poached or overfished, by regulating timing or restricting access, depending on the offense. As Capoeman’s grandfather had told him, “It had to be done in order to bring them back to their senses.”
Boldt’s meticulousness, combined with a temporary assignment in Washington, D.C., meant that the trial stretched on, but at last on February 12, 1974—Lincoln’s birthday, a date Boldt chose to reflect what he saw as the decision’s significance—he upheld the tribes’ treaty rights and reinforced their status as sovereign entities. In straightforward, unsentimental language, he described the tribes’ “paramount dependence upon the products of an aquatic economy, especially anadromous fish, to sustain the Indian way of life.”
The decision was celebrated throughout Indian country. “In the 1960s there was a general belief in the public that treaties were ancient history, not the supreme law of the land,” said John Echohawk, the executive director of the Native American Rights Fund. “Our wish became true…. The treaties were acknowledged as the law. The Boldt Decision was the first big win for the modern tribal sovereignty movement.” A state official, meanwhile, compared the decision to a dictatorship. Bumper stickers read “Can Judge Boldt—not salmon.” Boldt, white Washingtonians argued, had made the majority population “second-class citizens,” denied equal rights.
A federal appeals court upheld the decision in 1975, but the Supreme Court declined to hear it for five years, a silence that exacerbated state officials’ anger and resulted in a salmon fishing free-for-all. Puget Sound was filled with white poachers ramming Indian boats, cutting nets, and slashing car tires (as they still do). At last the Supreme Court upheld the decision on July 2, 1979, quoting Boldt’s opinion repeatedly, as well as a 1905 case, United States v. Winans, which described the right to take salmon as “not much less necessary to the existence of the Indians than the atmosphere they breathed.” Washington state legislators were reprimanded. “Except for some desegregation cases,” the decision read, “the district court has faced the most concerted official and private efforts to frustrate a decree of a federal court witnessed in this century.”
In the years of the Pacific Northwest fish-ins, Sam Ervin, the North Carolina congressman who led the Watergate hearings, had a reputation for fighting against civil rights legislation, though he nevertheless sponsored the Indian Civil Rights Act of 1968. Unbeknownst to many Americans, North Carolina is home to the largest population of Native Americans east of the Mississippi—a population that included Ervin’s staffer Helen Maynor Scheirbeck, a Lumbee from Robeson County. Scheirbeck also helped pass the 1972 Indian Education Act. Thanks to that law, in the late 1970s a Lumbee educator was brought into the North Carolina elementary school attended by Ryan E. Emanuel, whose book, On the Swamp: Fighting for Indigenous Environmental Justice, looks at the survival of indigenous communities along the southern coastal plain.
Emanuel is a hydrologist and a professor at Duke. He grew up in Charlotte, a city in the soft hills of North Carolina’s Piedmont region, spending summers “on the swamp”—the traditional Lumbee territory. “The place we come from is the crazy quilt of blackwater streams, floodplain forests, and sandy uplands that all drain to the Lumbee River,” Emanuel writes.
To be “on the swamp” means to be around Prospect, Saddletree, Burnt Swamp, Sandy Plains, Back Swamp, or one of the myriad other Lumbee communities arrayed across the Lumbee River basin.
The area is characterized by low-lying, hemlock-covered microclimates that are remnants of the just-glaciated past, what paleoecologists refer to as refugia.
By the time Isaac Stevens set out to extinguish Native rights in the Pacific Northwest, tribes in the Southeast (including the Cherokee, Chickasaw, and Choctaw) either had already been forcibly removed to what would become Oklahoma or were negotiating recognition in a society that acknowledged them reluctantly, if at all. Early encounters with settlers in the Southeast had destroyed communities with war and disease, but the Lumbee found a form of protection in the isolated swamps, their own refugia. “To settlers,” Emanuel writes, “they were unmapped places, interstitial lands. But to us, these places were home—backwaters amid swirling currents of colonialism.”
In On the Swamp, Emanuel uses his scientific training to gauge his homeland’s inscrutability to white settlers. In 2019 he compared nearly a hundred maps of the coastal plain created between the 1500s and the early 1900s and discovered that, prior to 1800, colonial mapmakers “generally did a poor job of representing the topology of the Lumbee River.” To miss the river’s “twisting, wandering channel” was to miss the “network of connected places” that makes up the Lumbee community—but it was this obscurity that afforded the Lumbee protection and, with an abundance of food and a strategic distance, strength. It was from a base in a Lumbee swamp that Henry Berry Lowry, a biracial freedom fighter and Lumbee hero, raided the Confederates during and after the Civil War, managing to avoid a sheriff’s hundred-man posse in 1871.
In the twentieth century, attacks came from railroad corporations, logging companies, and developers involved in wetland drainage projects that saw the luxuriously rich ecology of the swamps as merely, a local judge said in 1939, “noisome odors and unwholesome fogs.” Then in the 1950s natural gas came to Robeson County, and the land was suddenly valuable in another way—as an easement. “When Indigenous people today say that fossil fuel projects plow through their lands without regard for the well-being of communities and cultural landscapes, they are not exaggerating,” Emanuel writes. “They are speaking from generations of lived experience.”
Prospect, a town in Robeson County made up almost entirely of Native people, became a gas hub along the Transcontinental Pipeline, or TRANSCO, then the world’s longest gas pipeline, running from Texas to New York. Another hub was established near the historic site of Fort Nooheroka, where in 1713 a white militia had burned to death hundreds of Tuscarora people and enslaved hundreds more. (Many of the remaining Tuscarora soon relocated, joining the Haudenosaunee Confederacy in New York state.) These areas now include streams overwhelmed with animal waste from swine and poultry farms, and, Emanuel notes, “an ever-expanding tangle of gas pipelines and related infrastructure.”
But the Federal Energy Regulatory Commission (FERC) never asked the Lumbee for permission to run pipelines through their land. In 1956, two years before the digging began, Congress passed the Lumbee Act, which recognized the tribe as a sovereign entity. But termination was US Indian policy at the time, and a last-minute clause was added at the Bureau of Indian Affairs’ request, rendering the Lumbee legally invisible:
Nothing in this Act shall make such Indians eligible for any services performed by the United States for Indians because of their status as Indians, and none of the statutes of the United States which affect Indians because of their status as Indians shall be applicable to the Lumbee Indians.
This has caused real-life complications. In 2014, when a consortium of energy companies proposed a six-hundred-mile-long pipeline that would run from West Virginia to Robeson County, the chairman of the Lumbee Nation requested consultation, citing the Lumbee Act. The federal regulators sidestepped the tribe, citing the Lumbee Act, and in 2016 FERC concluded that “environmental justice populations would not be disproportionately affected” by the pipeline.
In 2017 Emanuel published a report in Science analyzing the route of the pipeline and showing how developers planned to clear-cut the swamp forests where the pipeline crossed water. Digging into the datasets buried in FERC’s appendixes, he also showed that while the Lumbee and other Native Americans made up just 1 percent of the population in the regions of West Virginia, Virginia, and North Carolina that the line would run through, they made up 5 percent of the people directly affected by its route. The pipeline was canceled in 2020, but had it been built, one in four Native Americans in North Carolina, or 30,000 people, would have lived along it—a population larger than that threatened by the Dakota Access Pipeline at Standing Rock.
Last March, Trump struck down a Biden executive order intended to strengthen tribal sovereignty. Yet even Biden’s order reads as aspirational; it suggested that the government consult with tribes “to ensure that Federal laws, policies, practices, and programs support Tribal Nations more effectively,” but consultation is not law. Deb Haaland, the Laguna Pueblo congresswoman from New Mexico who under Biden became the first indigenous secretary of the interior, oversaw the long-overdue accounting of the barbaric government-run Indian reservation boarding schools, including the uncovering of almost a thousand often unmarked graves. But in 2023, in that same position, she permitted ConocoPhillips’s $8 billion drilling plan on Alaska’s North Slope, the largest oil drilling project on public lands in US history, over the concerns of the Iñupiat mayor closest to the site, who noted that the previous year, during an uncontrolled ConocoPhillips gas release (“a unique event, with nothing similar ever occurring,” the corporation insisted), employees were evacuated while village residents were told they were safe.
This is not to say that the Trump administration, which aims to defund the federal agencies tribes rely on, won’t be worse than Biden. The government shutdown itself highlights the way the federal government funds its trust and treaty obligations through discretionary as opposed to mandatory funding for tribes, already the least well-funded among us, and the rush to extract everything from oil to rare earth minerals will hit indigenous lands hardest. But then the US government has a long, bipartisan, Constitution-sanctioned history of both taking Native territory and destroying it, denying imprisoned Native children their language in the process. Emanuel cites the United Nations special rapporteur on the rights of indigenous peoples, Victoria Tauli-Corpuz, who, after visiting western tribes in 2017, critiqued the US’s disregard for tribal sovereignty:
Sadly, I found the situation faced by the Standing Rock Sioux Tribe is shared by many other indigenous communities in the United States, as tribal communities nationwide wrestle with the realities of living in ground zero of energy impact.
The Boldt decision looked hard at a complicated history to map a new future for Native rights—and it worked. It is often cited as a first step toward the UN’s adoption in 2007 of the Declaration on the Rights of Indigenous Peoples. (The US was one of four “no” votes and the last holdout until late 2010, when Barack Obama agreed to support it, if only as an aspiration.) The autonomy allowed by Boldt helped the Olympic Peninsula’s Lower Elwha Klallam Tribe, whose elders had signed one of Stevens’s treaties, to, by 2014, take down the salmon-blocking dams that had been built on the Elwha River in 1910 by investors from Winnipeg and Chicago to power pulp mills. In 2023 the tribe held its first ceremonial salmon catch in decades. In California and Oregon, where the Yurok Tribe used its Boldt-era legal victories to regain its land and eventually take down dams on the Klamath River, salmon took only about a week to find their way to tributaries that had not had salmon in them for over half a century. “It feels like catharsis. It feels like we are on the right path. It gives me hope for the future,” Barry McCovey Jr., the director of the Yurok Tribe’s fisheries department, told the Associated Press.
Hope is a rare commodity, but if there is hope for the earth, generally it has to do with acknowledging indigenous sovereignty in the face of insatiable resource extraction. Indigenous people make up 6 percent of the world’s population, but their territory accounts for close to a quarter of the earth’s land surface, containing more than a third of remaining natural lands worldwide, often in northern boreal and equatorial forests. Tribes have built up a body of Indian law that is as dynamic as it is unacknowledged. “Tribal sovereignty is one of the most powerful and valuable public ideas that has ever touched my mind,” Wilkinson writes.
I say that, not just because of tribal sovereignty’s legal and intellectual worth, but because it also has proved to be so invincible. The world’s most powerful nation tried to terminate tribal sovereignty over the course of many generations, but could not because it meant so much to Indian people, small minority that they were, and they refused to give in.
Robert Sullivan’s books include Rats, The Meadowlands, and A Whale Hunt. His latest, Double Exposure: Resurveying the West with Timothy O’Sullivan, America’s Most Mysterious War Photographer, was published last year. (December 2025)
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