Plaintiffs in U.S. v. Washington identified two central objectives. The first was to establish the meaning of the treaties at the time they were brokered—how the Indian people would have understood treaty terms. History of the tribes was, therefore, a crucial component. For anthropological background of the tribes, plaintiffs relied on Barbara Lane, an anthropologist from British Columbia who believed the treaties did not apply any restrictions on Indians fishing at ancestral grounds. “In my opinion,” she said, “the ‘in common language’ was intended to allow non-Indians to fish subject to prior Indians rights specifically assured by treaty.” “
She was an extremely careful researcher,” says Ziontz. “She had a superb memory and a huge trove of documents, so that whenever she said anything, if you challenged her she could immediately tell you exactly where this came from.”
The second task was to demonstrate a better way to manage the fishery altogether. The fishery “had a history of poor management,” says Pierson. The state was not only violating the Indians’ treaty rights, in his view. It furthered the insult by wrongfully blaming the depleting runs on tribes. The fishery should be managed closer to the mouths of the rivers or in the rivers, he concluded, with the work of fish biologist Jim Heckman. According to Heckman, Native Americans could take all they want of the run, while applying common sense and escapement goals. Pierson recalls an early meeting with the biologist: “We want you to sit down and, forget about who’s asking you, tell us the best way to manage fish.”
“I don’t have to sit down,” Heckman retorted. “You get closer to the actual harvesting of the runs. . . . There’s nothing wrong with nets. There’s nothing wrong with gillnets.”
Heckman “put together a report and a plan.” He believed Indians could fish for steelhead in the Nisqually River without damaging the resource. In fact, Heckman said, between 1965 and 1970, chum had the best escapement record and the run was fished commercially by Indians only.
After three years of trial preparation that included depositions from both Billy and his father, nine attorneys graced the courtroom stage in August 1973. Billy stood in the back of the room worried the case was rigged.
“This is no mere contract dispute,” argued Ziontz. The polished and witty native of the Windy City represented a handful of the tribes. “[It] involves human rights and the national honor of the United States.”
“Good men and good countries keep their word,” added attorney James Hovis. He called his legal strategy the “God and Country doctrine.”
“Give us a decision . . . end the need for endless litigation . . . allow both Indians and non-Indians to get on with their fishing,” pleaded an attorney for the state.
According to the state, if left to their own devices Indians could modernize their fishing techniques and overfish salmon runs. They should be treated the same as all citizens and not granted a superior status: “The U.S. Supreme Court always has drawn the line at the reservation boundaries and that Indian rights beyond that are in common with the rest of the citizens.”
But even parties within the state disagreed on the answer. The Game Department pushed to ban Indians outright from steelhead in off-reservation waters; the Department of Fisheries proposed allotting a percentage of salmon for the tribes.
On the witness stand the Game Department’s Carl Crouse defended the total ban. The resource simply couldn’t survive Indian commercial fishing, he told the court.
Meantime, Walter Neubrech, now retired from the Department of Game, was asked point-blank if “his enforcement agents ever joined sportsmen groups as vigilantes.” Neubrech said he knew nothing of the practice and blamed the riverbank flare-ups on a few “dissident Indians.” Moreover, Neubrech said it was extremely difficult to identify Indians of treaty tribes: “It is almost impossible to acquire an official roll of tribal membership except for the Yakama Tribe. We know of no guidelines that have come down from the courts defining when an Indian is an Indian and when he isn’t an Indian and what degree of ancestry he must have. It is difficult to decide whether a person you found on a stream with a net is, in fact, an Indian of the United States and a member of a treaty tribe.”
According to Neubrech, numerous arrests had been made and most resulted in convictions. He gave specific examples to the court: “There was one Indian from a non-treaty group over in Eastern Washington. There was a defendant that was of Canadian Indian ancestry. One was from Mexico. One defendant did not appear to have any degree of Indian ancestry. One or two defendants were of Mexican American ancestry.”
