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100 thirteen U.S. v. Washington: The Trial u.s. v. washington was filed in september of 1970, but pretrial depositions and preparation of biological and ethnological reports consumed more than two years. The case did not come to trial until August 27, 1973. We gathered in the courtroom of Judge Boldt in the federal courthouse in Tacoma on that August morning, and I took my place at the counsel table as one of four attorneys for the plaintiffs: Stu Pierson, representing the U.S. government; David Getches and John Sennhauser for the Muckleshoot, Squaxin Island, Sauk-Suiattle, Skokomish, and Stillaguamish tribes; and I was representing the Makah, Lummi, and Quileute tribes. Behind us sat Michael Taylor for the Quinault Tribe, James Hovis for the Yakima Tribe, Lester Stritmatter for the Hoh Tribe, and William Stiles for the Upper Skagit Tribe. Strangely enough, the Puyallup and the Nisqually tribes did not have private attorneys representing them, though the federal government named them as co-plaintiffs and represented their interests. The atmosphere at the plaintiff attorneys’ table was tense. Everything was at risk and we had deep misgivings about the judge. But though I felt apprehensive, I welcomed the showdown. The fishing rights struggle had produced in me feelings of real hostility toward the state of Washington . Like Janet McCloud, I saw every officer wearing a Washington State uniform as a symbol of oppression and racism. I recognized this was irrational, but I had become emotionally caught up in the Indian the trial 101 cause and it affected me deeply. So as I sat in the courtroom waiting for the trial to begin, I felt a rush of adrenalin. I was ready. For the past nine years I had prepared for this moment; I knew the history of state aggrandizement of the fisheries, I knew Indian people and their history, and I knew the law. No longer would the state of Washington be able to overpower Indians with its bullying tactics. This would be a fight unlike any other the state had waged against the Indians. The trial began with opening statements by each of the attorneys.1 Stu Pierson rose to speak for the federal government: May it please the court, the United States filed this suit for two basic purposes; first, to reaffirm the principles which protect the exercise of the Indians’ treaty rights to fish against improper state regulations. The second purpose was to examine and establish specific standards which will guide the parties, the Indian tribes and the State and the United States as well, in circumstances where the state asserts a need or a power to regulate fishing by tribes who claim treaty rights to fish outside the reservation boundaries. There really are two temporal frames of reference, the first one is the time of treaties and we will go into that to examine the promises made and the meaning of the terms. The second temporal frame of reference is modern times. We have an exhaustible anadromous fishery source; I think all the parties are interested in conserving it. It is a question of how it will be conserved, who will take from the resource and how they will take it. Our legal frame of reference comes from a line of many decisions. And here Pierson cited the U.S. Supreme Court decision in U.S. v. Winans, which established that the treaty right to fish is a reserved right.2 He went on: Later, in the Puyallup case in 1968, we are told that the state, by an appropriate exercise of police power [regulated Indian off-reservation treaty fishing]…There are three standards in 102 the trial that decision; the state regulation must not discriminate against the Indians, must meet appropriate standards, and it must be shown to be reasonable and necessary for [conservation] of the resource. Although there is some conflict among the parties about this…it is the view of the United States that the burden to show that the regulations are reasonable and necessary is on the State. Lastly, the important frame of concentration for the United States in this case is how have the state agencies regulated the exercise of the privilege of non-Indians to fish outside the reservation boundaries. In our view, that privilege must be regulated and controlled so as to provide the Indian Tribes and their members a fair share of the resource… It is the view of the United States that because the Tribes’ treaty rights...


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