Treaty Justice by Charles Wilkinson

Author:Charles Wilkinson
Language: eng
Format: epub
Publisher: University of Washington Press

After the trial and all lawyers’ arguments were completed, Judge Boldt turned to writing his opinion. By then he probably had decided that the tribes were entitled to a 50 percent share. But that didn’t answer the burning question: who will regulate the harvesting of the tribe’s 50 percent share—half of the entire fishery!—and assure good environmental practices so that the salmon will have healthy sustainable runs?

Judge Boldt came forth with a highly innovative approach that had never been tried before. He must have been working his idea through his mind continually, especially as he intently watched and listened to the many Indian people who took to the witness stand.

As he pointed out, Congress and the federal agencies had shown no intention of taking on that management of tribal fishing and, as Judge Boldt understood the law, the treaties did not allow for virtually any state regulation of tribal fisheries. He explained his thinking: “Ever since the first Indian treaties were confirmed by the Senate, Congress has recognized that those treaties established self-government by treaty tribes.” He accurately recognized that, during the century after the treaties, Congress did limit tribal authority. But he gave examples that, especially in the decade leading up to his opinion, Congressional legislation “has definitely been in the contrary direction.” Referring to the almost tangible swell of statutes, presidential actions, policies, and court cases supporting tribal sovereignty and self-determination that he and others saw and felt right up through the trial, he wrote this:

These measures and others make plain the intent and philosophy of Congress to increase rather than diminish or limit the exercise of tribal self-government.…

The philosophy of Congress referred to above and the evidence in this case as a whole clearly indicate to this court that the time has now arrived, and this case presents an appropriate opportunity, to take a step toward applying congressional philosophy to Indian treaty right fishing in a way that will not be inconsistent with Puyallup I and Puyallup II and also will provide ample security for the interest and purposes of conservation.

In his decision, Judge Boldt set out a detailed set of qualifications and conditions that, if met by individual tribes, would entitle those tribes to qualify for self-regulation. Judge Boldt would rule, after tribal proposals and hearings, on whether individual tribes’ qualifications showed that the tribe would accept and abide by the requirements. The required qualifications and conditions included competent and responsible tribal leadership, a well-organized tribal government that could adopt and apply tribal off-reservation fishing regulations, trained personnel to police enforcement of the regulations, well-qualified experts in fisheries science and management, official tribal membership rolls and individual tribal membership cards, and full fish catch reports.

As for particular tribes, Judge Boldt made a formal fact finding in his opinion based on “uncontradicted evidence” that the Quinault and Yakama Tribes met the standards and would be able to exercise sovereign self-management. He added that “the evidence indicates several other plaintiff tribes have capacity for, and are not far

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