“And Grandpa answered her. The assistant attorney general stood up and objected to all of this, arguing that the witness shouldn’t be allowed to talk ‘Indian’ in the court, and that he couldn’t understand what the witness was saying. He was overruled by the judge. Judge Boldt said if Grandma don’t understand what you’re saying she can ask Grandpa, and Grandpa is answering her.
“Judge Boldt . . . you seen him thinking out a long ways about this whole mess we’re in. . . . And he said that you got to get your fish back home, but then the fish has got to have a home. And there’s dams on the river, and you’ve got to have in stream flows, the habitats got to be protected and all of that. It’s not today.”
On February 12, 1974, Boldt handed down a landmark 203-page opinion. During the trial, Billy had had his doubts about the verdict.
“We looked around, it was standing-room only, and it was all rednecks, sports fishermen. These guys got there and took all the seats. They wanted to show their power. I remember thinking, ‘I hope this place isn’t rigged.’”
The judge upheld treaty rights in usual and accustomed places, and defined the key phrase “in common with” as “sharing equally.” He abolished regulations that discriminated against Indian fishermen.
“That for me is one of the biggest decisions of our time—in U.S. history, in world history,” recalls Billy. “We didn’t have any money. We didn’t have any expensive attorneys. We didn’t have any infrastructure to work with the state . . . or the federal government or the neighbors of anybody or the utilities that put the dams on the river.”
Restrictive laws against treaty tribes in their usual and accustomed places were unlawful, Boldt said. The state’s role is in preserving the runs, not regulating the tribes’ share. Further, the treaty did not distinguish between salmon and steelhead. Boldt also clarified that no fisherman, Indian or otherwise, could destroy the fishery. Finally, he found that the Indians were allowed to self-regulate, co-manage the resource, and have the opportunity to catch up to half the harvestable catch. It was tribal attorney David Getchas who consulted a dictionary of the time period and concluded that the treaty phrase “in common with other citizens” meant sharing equally.
“And what [Boldt] said was the twenty tribes will all be self regulatory tribes at the end of this time,” Billy recalls. “And you’ll have your infrastructure. All your tribes will be together from Lummi to the ocean, from South Sound to North Sound and the Pacific Ocean. You guys will all have your infrastructure, you’ll have your science, your technical people, your collecting data, your policy people, and your lawyers. . . . And the United States government said you guys will go back to Congress and you’ll get the money. We’ll get the money for the infrastructure of what we’re doing, the Northwest Indian Fish Commission, to coordinate all of this. And so that’s how this place was born. . . . Oh god. It was just great.”
“This is American justice at its absolute highest: where you have established, wealthy, vested interests, and poor people—dispossessed people who have nothing to hang their hat on other than a treaty 120 years earlier that many are saying is outmoded,” Wilkinson says. “You can’t understand American justice fully without understanding the Boldt Decision. It is that paramount. It holds that high a place in our legal system and in our history and in our collective national consciousness.”
Though some tribes have pigeonholed Slade Gorton as a racist, the Republican, who would become a target of Northwest Indian tribes, says as attorney general he examined the case as a matter of law. It was special treatment of the Indians, not the color of skin, that concerned Gorton: “The state’s view, which I still think is absolutely correct as a matter of law, was that it meant that they have the same rights that the citizens did because Indians weren’t citizens at the time when the treaties were signed in 1853,” Gorton says today. “And what Governor Stevens and everyone meant was that there’d be no distinction between Indians and non-Indians. The Indians would have rights ‘in common with’ the citizens, which of course meant that fifty or sixty years later when fish began to get scarce and you began to have some kind of conservation laws, the same laws applied to everyone.”
“I know Slade personally,” says Ziontz. “He’s a very principled guy. He’s not a racist. But his principles don’t include a society in which Indians have a separate existence. He was very aggressive, leading the attorney general’s office in resisting the Indians.”
Pierson does not buy Gorton’s argument that the Boldt decision made Native Americans super citizens: “It’s a politically-charged and absolutely incorrect statement. . . . If you have a group of people who have a special relationship with the federal government, they’re going to be different. That doesn’t make them super.” Says Pierson: “It prompted the state fisheries and game fisheries to recognize number one that they were not regulating for one group; they were part of a much larger ecological system affecting fish coming to spawn. To the people who were watching, it puts a lie to the statement that Native Americans were harming fisheries. They had developed a very effective way of managing.”
