Award winning history day paper

Jacob Zionst's paper won second place in the Washington State History Day competition and will represent the state in the National History Day competition. We thought you'd like to read an award-winning paper, so we are publishing the main paper here. Not included here are the documented images and an extensive annotated bibliography. Jacob is a student of Mikael Christensen's at Shorewood.

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Far-Reaching Rights: An Era of Innovation in Treaty Law in Washington State that Impacted the Rights of Aboriginal Peoples Worldwide

By Jacob Ziontz, Senior Division

Today, we see Native Americans in a respectful light. Gone are the old stereotypes of powwows, teepees, and headdresses. Especially in areas like the Pacific Northwest, Native Americans are viewed as a proud people, deserving of our respect and acceptance. This is in no small part due to the reacceptance of Native American treaty rights. These rights were established two hundred years ago by the founding fathers of our country, but were slowly forgotten and neglected. Thirty years ago, legal action taken by Native Americans helped them to regain their treaty rights, and the respect of the general public. The restoration of traditional Native American fishing and whaling rights in the Pacific Northwest in the mid to late 20th century promoted indigenous rights to natural resources not only locally but also nationally and internationally.

The dispute over Native American’s rights to natural resources in the Pacific Northwest began in the 18th and 19th centuries, as the United States government was attempting to expand westward. The government gave its territorial governors one major goal: to procure as much land as possible as quickly as possible for the United States of America. However, they did not want to forcibly remove Native Americans from their lands. Instead, treaties were created that, in essence, traded the land the Native Americans lived on for various rights, privileges, and compensation. In less than one year, Governor Stevens was able to procure 64 million acres of what is now Washington State, leaving only 6 million acres owned by the Native Americans (Chrisman). In 1855, Washington territorial governor Isaac Stevens drew up one such treaty with the local tribes. An image of the treaty and a more detailed description is provided in Appendix I. The language barrier caused inexact translations and Governor Stevens was a crafty diplomat, so the tribes gave away many rights that they might have otherwise never ceded. However, the tribes stood their ground on one important issue: “the right of taking fish and of whaling or sealing at usual and accustomed grounds and stations”. This phrase from the “Treaty Between the United States of America and the Makah Tribe of Indians” guaranteed Native American tribes that they could continue to fish, whale, seal, and generally maintain access to their natural resources even though the land would no longer be theirs. In the fight for treaty rights more than a century later, this statement would be the foundation for Native American claims to rights to natural resources.

For a time, the rights secured by the Native American tribes in their treaty were upheld by all parties. But slowly, the authority of the treaties began to diminish, and the special privileges that Native Americans had because of the treaties were no longer recognized by state law. The treaty rights provided Native Americans the right to fish without restriction at their “usual and accustomed grounds”. To the Native Americans of the Pacific Northwest, it seemed as though they had given their land in exchange for false promises, and there was little hope of such a small minority having an impact upon the powerful state governments that were opposing these rights.

Mid way through the 20th century, the civil rights movement began in America. But while this phrase is more commonly associated with African-American empowerment, it had major impacts on the rights of Native Americans as well. Former Makah attorney Alvin Ziontz says that “[The legal cases brought forth by Native Americans in the 1960s and 1970s] was the equivalent of the black Civil Rights Movement.” Native American empowerment took place in the form of legal cases brought by the tribes and by individuals. At first, success was limited, and unfavorable rulings for Native Americans were common. Native Americans fighting for their rights were often ruled against in court, and no significant changes occurred. Then, the fight for Native American rights began to make headway in cases such as Satiacum v. Washington in 1973, which was given media attention and legal scrutiny. However, the culmination of decades of legal battle over Native American rights was U.S. v. Washington, a case more commonly identified by its historic conclusion: The Boldt Decision.

In 1970, the United States government, on behalf of the affected tribes, filed a case against the State of Washington in an effort to secure treaty rights for the Native American tribes that lived there. The reasons for this were many, but one of the federal government’s main incentives might have been the Cold War. During this time, the Soviet Union was criticizing the United States government for denying rights to their own indigenous peoples (Ziontz, Alvin. Personal Interview.). The main issue that was being debated was the Native American tribes’ right to fish in Washington State as their treaty provided. In 1974, after several years of legal proceedings and extensive deliberation, Federal Judge George Boldt issued his ruling on the case. In what would later be referred to as the “Boldt Decision”, Judge Boldt granted a major victory for Native American rights. He ruled, among other things, that Native American tribes in Western Washington were entitled to 50% of the annual catch of the salmon and steelhead species at the tribes’ “Usual and accustomed grounds (United States v. Washington).” The U.S. Supreme Court later affirmed Boldt’s decision in 1979, which for the most part ended the legal dispute. In addition, Judge Boldt ruled that Native Americans could not be limited by the state as to where they could fish unless restricted by severe conservation measures. A consequence of this decision was that non-Native American commercial and sport fishermen were substantially limited in their ability to fish. This innovative decision “…sent shockwaves throughout the state (Ziontz, Alvin. Personal Interview).”

The Boldt decision had a significant impact on indigenous peoples in many different respects. A flourishing Native American fishing industry developed, and many previously impoverished and despondent tribal members exercised their secured right as a new career. As a result, problems like Native American alcoholism, violence, and family disintegration were not solved, but were certainly alleviated by the Boldt decision. In addition, the general public’s view of Native Americans changed. Understandably, many non-Native American sport and commercial fishermen were upset about the new restrictions on their lifestyle, but the overall change in public view of Native Americans was positive. Native American history and culture began to be incorporated into public school curriculum, and the Native American tribal governments began to receive recognition in the same respect as state and federal government (Ziontz, Alvin. A Lawyer).

In the 1990’s, the Makah Indian Nation also regained another significant right. The Makah tribe had been hunting whale for thousands of years, but the white commercial whalers had decimated the whale population in the nineteenth century. In 1946, the International Whaling Commission (IWC) created an agreement, signed by many different countries including the United States, that essentially made whaling illegal, consequently stopping the Makah from their ancient practice (“International Convention For The Regulation Of Whaling”). This held true until 1999, when the population of the gray whale that the Makah hunted rose to an all time high. The Makah announced that conservation was no longer an issue and that they would once again begin to whale.

The announcement that the Makah intended to hunt whale once again met immense opposition from many different organizations, from government agencies to animal rights activists. But the Makah were determined to exercise their treaty right in order to preserve their culture and strengthen their tribal ties. What truly prevented them from whaling, however, was the IWC’s agreement, which made whaling illegal for the Makah. Fortunately, a solution was found. The Chukchi indigenous people of Eastern Russia had a generous whaling quota allowed by the IWC that they were for the most part not using. The Makah were able to reclaim their right by borrowing whales from this quota for their own tribe’s use. Of the 165 whales that the Chukchi were allowed to hunt every 5 years, they transferred the right to the Makah to take 20 whales every 5 years, or 4 whales every year (Ziontz, Alvin. A Lawyer). This agreement not only benefited the Makah and allowed them to regain their ancient tradition, but also was an inspiring collaboration of two indigenous peoples. On May 17th, 1999, for the first time in 70 years, the Makah people hunted and killed a whale. They were the only Native American tribe in the United States legally able to do so. For more information of Makah whaling practices, see Appendix II. This was a significant victory for Native American treaty rights and one that signified how far Native American treaty rights in the Pacific Northwest had come since the Boldt decision.

The Boldt Decision and cases like it had many impacts locally. But because of its innovative implications, it attracted attention from other indigenous people on a broader scale. In the United States, tribes from many different states used the Boldt decision as an authority for exercising their own treaty rights. The Chippewa tribe of the state of Minnesota had wording in their treaty with the United States government that was similar to that of the Makah treaty. “It shall not be obligatory upon the Indians, parties to this treaty, to remove from their present reservations (Treaty With The Chippewa).” They argued that because of what that wording meant for the Native American tribes of Western Washington, they should have the same rights as those tribes. They used this reasoning to help win legal cases and restore their treaty rights to natural resources. In addition, Native American tribes in Michigan, Wisconsin, and other states used the Boldt decision to win legal cases or to help establish a co-management of fisheries with the state governments.

But the Boldt decision’s impact goes beyond the boundaries of the United States. In New Zealand, the aboriginal Maori people made a treaty with its government similar to the treaty Native American tribes of Western Washington made with the United States government. The phrase “…the right of taking, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the territory… (Treaty Between The United States of America and the Makah Tribe of Nations)” in the Makah Treaty was argued by the Maori to be analogous to the phrase in the Treaty of Waitangi, which gives the Maori “full exclusive and undisturbed possession (Treaty of Waitangi)”. For an image of the original Treaty of Waitangi, see Appendix III. The Maori pointed out this similarity to the governing British Crown in instances such as the Muriwhenua Fishing Claim and were able to retain full authority over their fisheries (“Muriwhenua Fishing Claim”).

In Australia, aboriginal tribes secured land rights in much the same way as Native Americans secured their fishing rights in Washington State. In the words of Australian Native Title lawyer Dr. Lisa Lombardi: “The treaty rights were upheld in a series of cases culminating in U.S. v Washington, more commonly called the Boldt decision. This decision has created an interest in public land in the U.S. very similar to native title interests in Crown lands in Australia…[they] are viable and valuable interests that remain wherever they have not been explicitly extinguished and compensated for.”

And in Canada, First Nations saw the impacts of the innovative Boldt decision and thought they could secure their rights to natural resources in the same manner. In cases such as Sparrow v. The Queen, brought by First Nation tribe member Ronald Edward Sparrow against the Canadian Government, and Regina v. Sparrow, there were significant impacts by the Boldt decision. Associate Dean of Graduate Studies and Research at the University of British Columbia Douglas Harris commented on Regina v. Sparrow saying, “Thus, after conservation the Indian food fishery had priority. But conservation was, in the court’s words, a ‘compelling and substantial’ objective that would justify the federal government’s infringement of an Aboriginal right to fish. To this extent, the judgment mirrored the Boldt decision without citing it.”

It is clear that the Boldt decision was an innovative use of the law, and it had a huge impact on matters of aboriginal rights to natural resources around the world. Unlike many great moments of change throughout history, the innovation of the Boldt decision came not in the form of a new technology or law, but in a unique application of the law. When Judge Boldt implemented the treaty law in such an innovative manner in his historic decision, it was this momentous change that would have an effect on aboriginal peoples worldwide. In the words of Seattle PI columnist Lewis Kamb: “Dozens and dozens of cases, and I’m sure well into the hundreds, have cited Boldt’s precedent-setting ruling.”

The Boldt decision and legal cases like it in the mid to late 20th century had significant impacts on the local communities where they were decided. But they also had impacts on a broader scale. The Boldt decision impacted Native Americans in Western Washington by securing their treaty rights to natural resources. In addition, in the Midwest United States, aborigines in New Zealand and Australia, and First Nation tribes in Canada, impacts of the Boldt decision were present in the form of a legal precedent for future cases. Though it was initially a victory for only a small percentage of native people, it became one of the century’s most significant victories for aboriginal peoples worldwide.