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.

Afternoon speakers: The Legal Perspective

Stuart Pierson served as an Assistant US Attorney during the U.S. v. Washington litigation from 1971 to 1975.

Early in his career in civil rights law, he “found that law could be an effective instrument for minorities who had their rights being constantly trampled.”

“I came out here to prosecute the bad guys and ended up working with the good guys.”

The Fish Wars were an increasingly violent conflict and Pierson was the only one in the U.S. Attorney’s office who had experience getting an injunction against the state law enforcement.

The tribes had a clear supreme right: The treaty.

The tribes had a faithful judge.

The tribes had the tools.

“Collectively with the other lawyers for the tribes, we put together a remarkable record….We had a lot of discovery, a lot of interrogatories, a lot of documents. Two things we had were biology and anthropology.”

The Fish and Wildlife Service’s dedicated biologist was Jim Heckman.

The anthropologist was Barbara Lane. “What we told her we needed was to work with the tribes, go back and develop as much as the true history and anthropology.

“When you interview an expert, you have a fear that they’re going to give you the wrong answer. Barbara never gave me an answer, she gave me a full understanding of each tribe, a history of cannery period.”

Her work was crucial to all of us and gave us a sense that we could provide Judge Boldt with the fundamental understanding that none of the people outside the court knew until this decision.

John Echohawk, Pawnee, is the executive director of Native American Rights Fund (NARF) and is dedicated to helping Native Americans with legal issues. 

“I started in fall of 1970 in California, as part of a project of the Indian Legal Services Program. We wanted to expand our services nationwide and with a grant from the Ford Foundation, we started offering legal advice and assistance to Indian people who didn’t have legal representation. It took in nearly all our people but we had substantial rights under the treaties.

“It was a daunting task to look around the country and figure out what was the most priority … the one that jumped out at the most was what was happening in this area. There were a lot of arrests and violence and and it was national news. So it became pretty clear to us that this was one of the issues that thought we’d see if we could help with.”

NARF spent time in this area and had to think big in terms of the treaty.

“It was outstanding what Boldt did. (NARF) was very strong in asserting that very substantial right on behalf of the tribes. It has because something of a tradition for us, fighting for big issues around the country. Sovereignty issues, federal termination cases. Headlines were all across the country in terms of our people standing up for their rights through the work of NARF. We also worked with Native American leaders to help us determine which were priorities.

These leaders today continue to help address issues across the country. We’re involved in all kinds of issues with tribes across the country – tribal sovereignty, human rights, natural resources protection, as a nonprofit we’re always looking for ways to raise funds to help those who don’t have the resources to fight themselves.

Now in our 44th year, it’s great to have the tribes step up and provide resources to NARF. Like Billy was saying, these issues go and on and on.

Patricia Zell is the former staff director/chief counsel, U.S Senate Committee on Senate Affairs

Zell started off with a quote from President Lyndon B. Johnson: “We must affirm the rights of the first Americans to remain Indians while exercising their rights as Americans. We must affirm their right to freedom of choice and self-determination.”

She was a part of the U.S. Commission on Civil Rights that came to Washington state to examine if there was discrimination was being practiced against Indians, where she first met NW tribal leaders, including Ramona Bennett, Gilbert Kinggeorge and Billy Frank Jr.
Post-Boldt decision showed that backlash from the non-tribal citizens was due to ignorance.

“When people don’t know what the laws are and the rights are the rights are, they have to make judgements on what the media says or politicians say.”

Native Americans have been treated as a people of the past.

“There’s a gross lack of information about us as a contemporary people and people who still live in this country. This is the same message we ask the young people to listen to. It ran through the lives of your parents and grandparents. And it will run through your lives as well.

“That ignorance, that lack of knowledge – many members of Congress think that the treaties signed and approved so many ears ago are not relevant anymore or shouldn’t be. It’s a challenge you’ll have and your children will have. We have to keep on keeping on with the job of education.”

Zell spoke to a proposed bill to decommercialize steelhead: “In this case, the members of the different panels  represented the state, the tribes, the commercial fishermen, sports fishermen and those who were engaged in management at state, tribal and federal level. They all spoke to senate committee before the hearing and wanted to sit together as one panel. Each witness stood up, which was unusual and gave testimony standing up. ’10 years after the Indian wars and now 10 years since Boldt decision, we’ve decided we work fine as is. We are co-managing the resource, we are working together. We have developed and flourished relationships that we plan to continue.'”

In the aftermath, it was a remarkable development in a very short time. And that good work goes on.

“The work of the Boldt Decision goes on and that’s what the young people, that’s the foundation it has stood on and you can do it again.”

Billy Frank Jr.: Nobody knew what the treaty was about

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NWIFC Chairman and Nisqually tribal member Billy Frank Jr.:

This is all an education of who we are. It started a long time ago. It started before me and before my parents. It started before all of our moms and dads and grandpas and grandmas. They knew what they had to do. They lived here, they never moved. This is their home, and that’s our food that comes up that river every day.

You take our food away and our water, and we might have to do something like taking over the Game Department building in Olympia, Washington. The night before, the state Game Department came down and took all of our gear from the Nisqually River. They took all of our boats, confiscating everything. Hauled them off into their little backyard in Olympia, the Game Department building.

We have to feed our family like everybody else. Who do we go to? Do I go to Congress? Do I go to the president? Do I go to the governor?

Nobody listens to you because you’re an Indian. You have a treaty with the United States and they don’t know what the hell that means. They’ve never implemented it. Never taught it in their schools, so nobody knows what the treaty is about, until we come along and start talking about our five treaty areas.

That took a long time to make that happen, and we’re still doing it today. We’re having this great celebration. We’re talking to our young people, telling them we’ve got to remember what we’re all about.

We’ll die for that clean water. We’ll die for that salmon. We’ll die for everything that flies. We’ll die for that mountain. We’ll die for those trees. That’s what every Indian in this country talks about.

Remembering the trial

Charles Wilkinson, Distinguished Professor and Moses Lasky Professor of Law at the University of Colorado Law School, and author of 14 books on Indian law and history, described the U.S. v. Washington trial.

Excerpts:

Through the proceedings, Judge Boldt came to know and feel a high respect for an industrious people who would never surrender their rights to harvest the seas, forests and meadows. He could see how the United States could have concluded that treaty-making with these nations was appropriate.

In 1970, Judge Boldt knew almost nothing about native sovereignty or culture. It was the native people at the council tables, on the river and on the shores who had the strategy, vision and fierce determination to wage a fierce campaign that at the beginning seemed impossible to everyone but themselves.

Outstanding attorneys, first-rate archaeologists, historians and scientists brought compelling facts into the courtroom and they testified for the tribes. Throughout the trial, Indian people kept silent vigil on the wooden benches in the gallery or standing against the wall of the packed courtroom. Tribal elders tool the stand and offered their accounts about aboriginal times, the treaties and the more recent times. Most of them spoke in their own languages and their testimony was based on the rich and accurate oral tradition.

Judge Boldt accepted the elders’ testimony and took that evidence into consideration and listened raptly as they spoke. Ask anyone who witnessed that trial, the elders brought the whole story together, and Judge Boldt listened open-mindedly to the case.

Federal judges have to be especially vigilant in protecting what the court has called prejudice against discrete and insular communities. Two opposite notions — majority rule and minority rights — are main building blocks of our constitution. Judges are in the best position to stand up for dispossessed people when majorities come down on minorities.

In the days of the Boldt decision, and appeals, federal judges as a whole took seriously their duty to protect rights of dispossessed people.

The transcendent meaning of the Boldt decision was to uphold the treaty rights of the northwest tribes. It also is a national case, about national obligations and values. The decision was a gift to America.

The decision recognized that the treaties remained in full force, that treaties were supreme over state laws. Tribes were entitled to exclusive fishing rights on reservation and entitled to take 50 percent in their usual and accustomed areas off reservation.

Judge Boldt ruled that the tribes were sovereign governments and had the right to be regulators of the resource.

Your forebears passed the Boldt decision onto you. Now you can preserve it and other values. You can do it, the Boldt decision proves that you can.