Boldt ruling's effect felt around
Courts in Canada, Australia have used it as basis in rights cases
February 12, 2004
By LEWIS KAMB; SEATTLE POST-INTELLIGENCER REPORTER
A 203-page ruling handed down in a federal courtroom in Tacoma
on Lincoln's birthday in 1974 wouldn't just change lives in Washington
-- it would be felt worldwide.
In the three
decades since Judge George Boldt handed down his
ruling on the U.S. v. Washington case, the Boldt decision has
influenced the legal landscape for indigenous rights cases across
America and as far away as Australia.
the granddaddy of them all," said Robert Anderson, a
Minnesota Chippewa tribe member and director of the University of
Washington's Native American Law Center.
dozens of cases, and I'm sure well into the
hundreds" have cited Boldt's precedent-setting ruling as the basis of
legal arguments over Indian treaty rights, Anderson said.
Boldt -- considered a conservative jurist and, himself an avid
sport angler -- ruled that Washington Territorial Gov. Isaac Stevens'
mid-1850s treaties with Puget Sound area tribes spelled out that
Indians weren't granted -- but retained -- perpetual rights to half of
the salmon and steelhead harvests, among other guarantees.
The ruling essentially meant that off-reservation tribal hunting
and fishing rights provided in treaties with the federal government
"weren't a gift or an entitlement to the tribes, but something that
belonged to them -- like a property right," said Michael Taylor,
reservation attorney for the Tulalip Tribes.
"It's the modern case that is sort of the basis for
interpretation of what treaties mean," added Taylor, who 30 years ago
represented the Quinault Indian Nation during the case's trial.
Indian tribes in Michigan, Minnesota and Wisconsin used the
Boldt ruling to win legal decisions providing them with guarantees
mirroring those of Western Washington treaty tribes, including rights
to co-manage shared fisheries resources with state governments.
Tribes in Oregon, California, Montana and Idaho have won similar
tribal hunting and fishing rights cases based on the Boldt Decision.
And Alaskan Natives continually refer to the case as a framework for
protecting treaty rights in that state, Anderson said.
Courts have used the Boldt case as a legal framework to help
determine inherent indigenous rights cases involving First Nations in
Canada, and aborigines in New Zealand and Australia, legal experts say.
In Washington state, even as parts of the U.S. v. Washington
case continue to be litigated, tribes here continue to use Boldt's
ruling in other treaty rights legal arguments.
Only this week, lawyers for the Makah Tribe filed a petition for
rehearing a three-judge panel of the 9th Circuit Court of Appeals' 2002
ruling that essentially halted that tribe's recent gray whale hunts.
"The Boldt Decision is the whole basis of our case," said John
Arum, the tribe's attorney, who added that he's used the ruling as the
foundation of treaty rights cases for tribes as far away as Minnesota.
"A number of commentators have called the Boldt Decision the
most significant Indian rights case in the last century," said Mason
Morisset, a Seattle attorney who successfully defended the Boldt ruling
before the U.S. Supreme Court in 1979 -- defeating then-Washington
Attorney General Slade Gorton's appeals to overturn it.
"I would have to say they're probably right."