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92 twelve The Big Bang: U.S. v. Washington Begins two rivers were the focus of almost all the litigation over treaty rights in the state of Washington: the Puyallup, which empties into Puget Sound within the city limits of Tacoma, and the Nisqually, which flows from the Cascade Mountains into Puget Sound east of Olympia. Members of both the Puyallup and Nisqually tribes fished on these rivers in defiance of state law. A third tribe, the Muckleshoot , also challenged the state on the Green River, south of Seattle. These tribes were small and their reservation lands were pathetically tiny. They were also very poor and could not afford substantial attorney fees, but they had a little money and many supporters, Indian and nonIndian . They operated “smoke shops,” selling tax-free cigarettes, and fireworks stands, which only made money during the summer. Today the Muckleshoots operate a huge casino and hotel complex and have grown wealthy, but that came after long years of suffering and poverty. The fishermen from these tribes tangled with the state of Washington , and the resulting legal battles ultimately ended up in the U.S. Supreme Court not once, but four times over a ten-year period. The Court grappled with whether the state had regulatory authority over Indian fishing. If the state could regulate Indians, were there any limitations on its regulatory actions? If the state could impose regulations deemed necessary for conservation, what was the standard for the balance between conservation and treaty rights? Twice, in cases now called Puyallup I and Puyallup II, the U.S. the big bang 93 Supreme Court refined its rule.1 But none of the cases ruled on by the Court involved an overview of the entire state regulatory scheme. Worse, in none of them was any independent biological testimony offered to clarify the distinction between conservation and allocation. Perhaps the greatest shortcoming of the Court’s decisions was that they all involved individual Indian fishermen on a specific river. In no case was the picture complete. Missing was the history and anthropology of the Northwest tribes, as was the record of what the tribes had said and understood about the treaties they had signed. A clear, factual description of the entire fishery in Puget Sound and the Strait of Juan de Fuca was also missing, along with how the state managed that fishery. Finally, in none of these cases was the federal government a party. That would be remedied in U.S. v. Washington, the case that would end the state’s eighty-year effort to keep Indian fishing off the rivers and under its authority. In all the years of Indian struggle against the state of Washington , there was one nagging question: why was the federal government absenting itself from the conflict? After all, the issue was the protection of rights guaranteed by the United States in federal treaties. But the federal government had chosen to avoid clashing with state authority, leaving Indians to fend for themselves in the state courts. This would change in part because of fundamental shifts in the country’s political landscape after 1960. A civil rights revolution was being fought in the South. In the cold war with the Soviet Union, the United States was accused of oppressing its minorities. Most important, the Indians of the Northwest were no longer content to accept the status quo, and their demonstrations had attracted national attention. By the late 1960s the treaty rights conflict had escalated and become violent, with Indians being shot and clubbed. The administration in Washington, D.C., began to take notice of a dispute that was becoming an embarrassment to the federal government—and they finally took action. There are conflicting accounts of precisely how the federal government decided to bring litigation against the state, and I cannot give an authoritative answer to the question. I can only list some of those I know to have been key parties. Perhaps the most important actor was a little-known federal attorney , George Dysart. Dysart was legal advisor to the Interior Department 94 the big bang in the Portland office of the regional solicitor. In his post he had long been witness to the injustices suffered by the Indians of Washington and Oregon at the hands of those two state governments. But his authority was limited to advising the area office of the law on questions referred to his office. He could not bring a lawsuit against the states—only the U...


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