“Judge Boldt was a judge with a lot of prestige,” assesses Wilkinson. “He was a conservative judge. The tribal attorneys, as a strategy matter at the beginning of that litigation, spent a lot of time talking about whether they wanted to disqualify him.”
In 1971, President Nixon had other plans for Boldt. He appointed him head of the Pay Board, a part of the New Economic Plan that put the deep freeze on American wages and prices. U.S. v. Washington was reassigned to Judge William Nelson Goodwin.
“Judge Boldt moved to Washington, D.C.,” explains Billy. “He turned the case over to another judge who was from McKenna up here, up the river. And then when he come back home, this is years now, all of a sudden Boldt come back and he said, ‘I want my case back.’ So, he got his case back.”
“Put on that table every single case from the beginning of the country that pertains to the rights of Indians,” the judge told his law clerk. One by one, the two pored over every case, coming in on Sundays.
The tribes welcomed Boldt’s return. At an early conference with roughly a dozen lawyers and the judge, Stuart Pierson noted Boldt’s copy of Custer Died for Your Sins, a work by Vine Deloria, nationally recognized Indian activist and lawyer.
“The hardest part of this case was making sense of it,” says Pierson in hindsight. “And frankly, making peace among all of the entities. . . . The Justice Department was interested in what we were doing, but did not get deeply involved. They really let us do the case ourselves.”
The complaint focused on off-reservation treaty fishing rights secured in five treaties brokered between the U.S. government and Indians. For all its complexity, U.S. v. Washington hinged on the nineteenth-century Native interpretation of the phrase, “The right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians in common with all citizens of the Territory.”
Among the lawyers charged with relating the thoughts and intent of Indians long passed were Stan Pitkin, U.S. attorney for Western Washington, George Dysart, assistant regional solicitor with the Department of the Interior, and Pierson, as well as Al Ziontz and Mason Morisset, lawyers in private practice. They were writing a clean slate, Pierson says. “All of the other decisions were myopic or factually incorrect. The facts were wrong; the approach was wrong. We had very little precedent to work with.”
The relevant federal court case originated at Cook’s Landing on the Columbia River. The defendant was Yakama Indian David Sohappy, once called the Martin Luther King Jr. of fishing rights. Sohappy built a longhouse out of scrap wood and defied state laws to fish. In 1969, federal charges against Sohappy saddled the State of Oregon with an injunction and affirmed treaty rights of Indian people.
Traditionally, Oregon law prohibited net fishing on stretches of the Columbia River and did not distinguish between Indian and non-Indian fishermen. However, in Sohappy, the court held that the state’s fishing regulations discriminated against Indians by failing to acknowledge the treaties. Indians were a recognized group, the court ordered, and entitled to a “fair share” of the catch. A win for the tribes, but not good enough, Pierson says.
“We had strong disagreements,” remembers Ziontz, “but the disagreements were mainly between the government attorneys and the tribal attorneys. The government attorneys started out feeling that the best they could come up with was a treaty right to take fish for personal consumption, but not for sale. And it took some persuading and some anthropological evidence to convince them that historically the Indians had always sold fish.”
