After the Boldt Decision

Alan Stay, tribal attorney who represented several tribes in U.S. v. Washington:

“After U.S. v. Washington, every tribal person here had a right to expect a breather. Had a right to expect that once the law was articulated, that it would be followed. That their days of struggle might be coming to an end, and they could go on the water and enjoy the right that was secured to them in 1854 and 1855.”

The state was unable to recognize that they lost the case.

The tribes have “tenacity. You don’t win once. You don’t win twice. You just keep going until finally you beat the opposition down.”

When the state said it was unable to manage fisheries following the Boldt decision, “Judge Boldt says, ‘I’m going to take over part of the management. The part that affects tribes, even though you can’t or say you can’t, I will.’ ”

It was “a monumental change, a courageous decision by Judge Boldt. It hardly ever happens that the court will … not only enjoin the state, but also take an active role in making sure rules are followed.”

Two issues weren’t legally defined by Judge Boldt:

Habitat:

“When this case was filed, the tribes put into their complaint that habitat must be protected. What good is the right to take fish if there are no fish? They knew that was a hollow, false promise.”

Phase 2 decided with the 2001 culvert case, finally resolved in 2013.

“That’s a long time to wait for a decision, but it was a decision worth waiting for. When the state acts to build a culvert that harms fish, that’s wrong. That’s against the treaty. They can’t do it.”

Shellfish:

“In the 1994 Rafeedie decision, the court held that indeed tribes have a right to take shellfish they may never have taken at treaty times: subtidal shellfish. A fish was a fish. All the shellfish in their usual and accustomed areas. The treaty right went to all of that. A tremendously broad and powerful decision.”

Bill Wilkerson, former director of the Washington Department of Fish and Wildlife, helped foster co-management by the treaty tribes and the state.

When he was appointed deputy director of WDFW, Wilkerson said, “I want to put an end to this crap. I’m not interested in being deputy director if you’re not interested in putting an end to this embarrassing war.”

By 1983, when I became director, I’d pretty much had enough. We were still fighting daily in the fisheries advisory board, something Dr. Whitney oversaw for many years. The court was still basically managing the fisheries. I think Judge Boldt was one of the great judges in the history of the United States, but I don’t know that he and Dr. Whitney alone could manage as substantial a fishery as we had.

I was supposed to oversee the management. Billy thought at that time that he should be managing fisheries. Billy started it, by the way. Billy was starting to talk about (the fact) that the treaty right is the way, but what good is it doing when we’re fighting over a smaller and smaller resource?

I thought that was our job to protect the salmon. I thought our statute was crystal clear.

In 1983, I had come to a political conclusion myself, and I persuaded Gov. Spellman: We needed to end the fish war. The Boldt decision had the potential to be the most important and best thing that ever happened to the salmon resource in the state’s history. In the last 40 years, I think I was right: The best thing that has happened to the salmon in the state of Washington was the Boldt decision.

That was not a popular view. It probably still isn’t, but that doesn’t matter because it’s the law of the land. It has nothing to do with allocation, it has to do with raising the importance of the resource in the public’s mind.

We managed our way through a season together in 1984, at the same time forming the U.S.-Canada treaty together. It was just amazing how much attention we were able to garner for the fish at that time. Billy and I were starting to make speeches to larger crowds. People were sick of the fish wars. People were concerned about the fish.

Why do I say the Boldt decision was good? Because the Boldt decision triggered all of those things. It forced us to finally get together. Getting together doesn’t mean we were singing kumbaya. We didn’t agree with each other on everything, but we worked together. Billy and I started going to to D.C. together and telling the delegation we needed money,

Our society doesn’t have a sense of history like the tribes have. One of the things I respect most about what’s going on here today is the fact that multiple generations are meeting to discuss how we all got here.

If you ever feel like the Boldt decision can be taken for granted, don’t go there. The Boldt decision is the key to protecting the salmon, the key. You’re the political leverage. You have the legal leverage, and boy did I want to get on that train. And it was the best choice and I and my two bosses, Gov. Spellman and Gov. Gardner, ever made. We decided to be with you in your commitment to protecting the salmon and shellfish resources in the state of Washington. That proved to be better politics than fighting the tribes and fighting their treaty rights, I’m proud to say to the younger generation that your job is to continue the cooperation we built in in the 1980s because it works and it gives you power and it gives the state power that it would never have had if it weren’t for the gentlemen behind us, Judge Boldt.