restricted access 14. U.S. v. Washington: Closing Arguments and Judge Boldt's Decision
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116 fourteen U.S. v. Washington: Closing Arguments and Judge Boldt’s Decision closing arguments in u.s. v. washington were set for december 10, 1973, more than three weeks after the last day of the trial. There was an air of excitement in Judge Boldt’s courtroom when the day came. All of us were aware of the momentous implications of this case; we had come to the final act in this three-year-long drama. The federal government’s position was argued by George Dysart, the special assistant U.S. attorney. He began with the basic tenet of treaty language construction: the treaty must be construed by the court so as to carry out the intentions of the parties to the treaty—the United States and the Indians. The language should therefore be construed in the sense it would naturally be understood by the Indians and in a spirit that generously reflected the obligation of the United States to protect the interests of a dependent people. The treaties, he reminded the court, were not a grant of rights to the Indians, but a grant of rights from them, “with a reservation of those rights not granted”—language taken directly from U.S. Supreme Court decisions. In making the treaties, the tribes did not surrender their existence as political entities, Dysart pointed out, nor did they surrender all vestiges of internal sovereignty. Each tribe retained regulatory control over its members, and the state was wrong in claiming the role of parens patriae for the entire fishery resource and for all entitled to harvest it. But he opposed the tribes’ argument that they could not be regulated by the state, saying this issue had been settled by the Supreme Court’s decision closing arguments   117 in Department of Game v. Puyallup Tribe. Instead, he asked the court to set a strict standard of justification for any restrictions imposed without tribal concurrence. As to the “in common with” language, Dysart argued that U.S. intention had been to reserve to the Indians what they had had from time immemorial: fishing where and as they had always fished. Modern conservation requirements presented new problems, but the state was wrong in assuming it could dictate to the tribes the conditions of their fisheries. The U.S. Supreme Court had only recognized a limited sphere of police power for off-reservation harvesting. In view of evidence that the tribes had successfully self-regulated, there was a heavy burden on the state to show why the tribes could not regulate themselves off-reservation . As to limiting the Indians’ on-reservation catch, that was at odds with the “in common with” language, which applied only to offreservation fisheries. Dysart urged that the state should first determine escapement requirements and then limit the Indians only to conserve the resource and provide a fair share for non-Indians. Finally, he accused the state of fostering an atmosphere of repression and hostility, arguing that justice required that all the gear seized from Indians without judicial determination be returned to them or its value paid.1 David Getches, speaking for the Muckleshoot, Squaxin Island, Skokomish, Stillaguamish, and Sauk-Suiattle tribes, argued that any reduction in harvest for conservation must come out of the non-Indian share; there should be no ceiling on the Indian catch unless and until Indians were monopolizing the fishery. Conservation must be narrowly defined as true preservation of the resource. The tribes’ ability to successfully self-regulate was demonstrated by the fact that no on-reservation fishery had ever been destroyed by Indian fishing.2 In my closing argument on behalf of the Makahs, Lummis, and Quileutes, I tried to place the case in a historical and legal context. My clients had become co-plaintiffs, I explained, because they disagreed with the federal government’s premise that the state had regulatory power over Indian fishing. Under the Supremacy Clause of the U.S. Constitution, the laws of the state of Washington, I argued, were invalid as applied to Indians because they conflicted with the federal treaties. At the time of the treaty transactions between the Indians and the 118  closing arguments United States, the Indians were a thriving people with a highly developed culture, living a settled village life in an abundant economy oriented toward the products of the sea and the rivers. In fact, this defined their culture; it was who they were and what they were. The overriding interest of the United States at...


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