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THE THIRD SOVEREIGN  
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Robert Sullivan
November 13, 2025
The New York Review of Books
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_ If there is hope for the earth, it will depend in part on
acknowledging indigenous sovereignty in the face of insatiable
resource extraction. _

Members of Paddle Tribal Waters, an indigenous youth kayaking
program, which celebrated the largest dam removal project in US
history by organizing the first descent of the now free-flowing
Klamath River from its source in Oregon to the Pacific, June 2025, Max
Whittaker/The New York Times/Redux

 

Reviewed:

TREATY JUSTICE: THE NORTHWEST TRIBES, THE BOLDT DECISION, AND THE
RECOGNITION OF FISHING RIGHTS
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by Charles Wilkinson
University of Washington Press, 353 pp., $34.95
ON THE SWAMP: FIGHTING FOR INDIGENOUS ENVIRONMENTAL JUSTICE
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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)

_THE NEW YORK REVIEW was launched during the New York City newspaper
strike of 1963, when the magazine’s founding editors, Robert Silvers
and Barbara Epstein, alongside Jason Epstein, Robert Lowell, and
Elizabeth Hardwick, decided to start a new kind of publication—one
in which the most interesting, lively, and qualified minds of the time
could write about current books and issues in depth. _

_Readers responded by buying almost every copy and writing thousands
of letters to demand that the Review continue. From the beginning,
the editors were determined that the Review should be an independent
publication; it began life as an editorial voice beholden to no one,
and it remains so today._

_Silvers and Epstein continued as co-editors until her death in 2006,
and Silvers served as sole editor until his death in 2017. Since 2019
Emily Greenhouse has edited The New York Review, and it remains the
magazine where, across twenty issues each year, the major voices in
world literature and thought discuss books and ideas. In addition to
the print magazine, the NYR Online publishes thorough and
wide-ranging essays about politics national and global, film, art, and
the cultural preoccupations of the day._

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