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127 fifteen The U.S. Supreme Court Has the Last Word: Consequences of the Boldt Decision in 1976, the u.s. supreme court refused to hear the state’s appeal of the Ninth Circuit’s confirmation of Judge Boldt’s decision. But then the Washington Supreme Court ruled that the state had no right and no duty to enforce the federal decision. So a new suit challenging the legality of the Boldt decision’s enforcement orders was brought, and this time the U.S. Supreme Court was highly interested. The new case presented a direct conflict between the federal courts and the Washington state courts. The Supreme Court agreed to hear the appeals from the decisions of the lower courts, and the Boldt decision was now in the hands of the ultimate authority. My law firm led the Indian defense of the Boldt decision, and Mason Morisset, one of my partners at that time, argued the case for the tribes. Slade Gorton argued for the state of Washington. The United States was represented by Louis Claiborne, a veteran of the Justice Department ’s solicitor’s office, and Phillip Lacovara argued for the non-Indian fishermen. The decision of the U.S. Supreme Court came down in July of 1979, driving a stake through the heart of resistance to the Boldt decision. The designated title of the case was awkward, State of Washington v. Washington State Commercial Passenger Fishing Vessel Association.1 The named appellant was an industry group representing sport charter fishing boat operators. The case was decided by a six to three majority, with Justices Stevens, Burger, Brennan, White, Marshall, and Blackmun 128 consequences of the boldt decision voting to affirm and Justices Rehnquist, Powell, and Stewart dissenting . The Court reviewed every issue decided in U.S. v. Washington and, with a few minor exceptions, upheld all of Judge Boldt’s rulings. In the majority opinion, Justice Stevens quoted the 1975 decision of the Ninth Circuit: “The state’s extraordinary machinations in resisting the 1974 decree have forced the District Court to take over a large share of the management of the state’s fishery in order to enforce its decree. Except for some segregation cases…the District Court has faced the most concerted official and private efforts to frustrate a decree of a federal court witnessed in the century.” This was a historic condemnation of Washington’s actions coming from the Supreme Court of the United States. In my view, the responsibility for the state’s conduct, which provoked this extraordinary denunciation , falls squarely on Washington State Attorney General Slade Gorton. It was Gorton who led the state’s legal campaigns against the Indians and whose failure to support enforcement of the Boldt decision led to the complete breakdown of law enforcement on state waters. Gorton never appeared in court personally in any of the Indian litigation in the lower courts, but his hostility to Indian rights became so well-known that he was often called an Indian fighter. I had occasion to engage in a public debate with him on the subject of Indian rights at Western Washington University in Bellingham. It was very polite, but the tension between us was palpable. Nearly thirty years have passed since the monumental Supreme Court decision bringing an end to the Washington Indian fishing wars, and one can now see some of the results. They have been far-reaching. The Boldt decision and its subsequent enforcement have transformed the relationship between state and tribal governments. No longer invisible, tribal governments have become co-managers of the fishery resource, sharing power and responsibility with the state. There has been a growth in cooperation and information sharing, to the benefit of both state and tribal governments and the public. The regime has not always been without conflict, but there is a framework for solving problems without the confrontational politics of the 1960s.2 The increased capabilities and stature of tribal governments are not the product of the Boldt decision alone. Tribes throughout the nation have developed their government structures, which are increasingly consequences of the boldt decision 129 accepted in the American family of governments. In Washington, the Boldt decision laid the groundwork for tribal-state cooperation not only in the management of fisheries, but in other areas such as environmental protection, wildlife habitat, land use, and water management. Perhaps the single most important consequence of the decision was that it enabled the Indian people of the Pacific Northwest to return to...


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