Marge,

As gently as I can, I suggest you return to complete your education regarding the Boldt Decision. George Boldt was a Federal District Court judge in Tacoma, WA, not a Supreme Court Justice. And his decision in U.S. v Washington was February 1974, not 1976. Boldt’s decision was generally upheld by the U.S. Supreme Court in 1979.

If you had been reading this BB for any length of time, you would have seen this topic come up several, and probably numerous, times. Hence, I’m wondering if your post is actually a troll. In the event it isn’t, you may find the following of interest.

U.S. v Washington is silent on game. It is a fishing decision, and it does not apply to Native Americans in general. It pertains to selected treaty Indian Tribes that signed what are known as the Stevens treaties of 1854 and 1855 that contain language specific to reserved fishing rights.

The federal courts have consistently upheld that although treaty Tribes ceded much land to the U.S. government, they reserved fishing, hunting, and gathering rights in all usual and accustomed areas in common with the citizens of the territory. Boldt interpreted this to mean, using definitions from Black’s law dictionary, that the tribes reserved the right to 50% of the “harvestable” fish from their usual and accustomed fishing areas. The fact that Native Americans were slightly more than 2% of the general population in Washington State in 1974 is irrelevant. The treaties are held by tribes and the United States government, not individual Indians, so the fish harvest is to be equally divided among treaty tribes and non-treaty citizens, regardless of the number of Indians in the population. And since treaties are described as the supreme law of the land by the U.S. Constitution, all attempts to nullify the Boldt Decision have failed entirely.

Subsequent to the Boldt Decision, Washington State made an independent agreement with treaty Tribes regarding game hunting, recognizing that they would inevitably lose if they contested hunting rights in the court system. In all likelihood the State got a better deal through the negotiation than would have been achieved through the courts.

The State decided to contest shellfish gathering rights of the Tribes, and, as knowledgeable observers predicted, lost handily. The federal courts again upheld the tribes rights to gather half the harvestable shellfish.

Perhaps you’re beginning to see a pattern here. I think it’s worth noting that the federal courts, including the U.S. Supreme Court has generally held in favor of treaty Indian Tribes consistently since about 1905. I’m sure the state has won a few minor decisions, but I cannot honestly remember any. You ask what the hell Judge Boldt was thinking. Well, considering that he had a reputation as a very conservative judge, and that he told the tribes he didn’t think they had a very good case - before he heard it - it seems Boldt was thinking about applying the law and upholding the letter of the law, regardless of whether the outcome was popular or unpopular. The backlash to Boldt’s decision was unprecedented by any but some of the more unpopular civil rights decisions of the 1960s. I suppose that is what makes it such a landmark legal case in this country.

Happy studying!

Sincerely,

Salmo g.