The Boldt Decision: Revisiting a Landmark Tribal Treaty Fishing Rights Case

In 2008, we had the pleasure of interviewing Dr. Richard R. Whitney for our newsletter.  From 1974 to 1979, he served as technical advisor to the Hon. George H. Boldt in the United States District Court for Western Washington during the difficult implementation phase of the decision in United States v. the state of Washington. Here's an abridged version of his answers to a few key questions.

Q: Can you explain the significance of the Boldt decision and what role you played?

Whitney: In 1974 Judge Boldt handed down his decision in the case the United States v. the state of Washington. At that time it was more popularly known as the Boldt decision and has been commonly referred to as such ever since. The government sued the state because they weren't observing the Indian treaty rights; that was their claim. Well, they prevailed in court.

One of the first situations that I found myself in in court was when the tribes complained that the Washington Department of Fisheries had not allocated them their proper share, their 50 percent of the coho salmon migrating through Puget Sound. So they had the assistant director of the Washington Department of Fisheries on the stand, and the tribal attorneys were asking him all kinds of questions that he was very good at answering. But they didn't know how to ask the right questions to corner him. And he didn't know how to answer within the boundaries of the decision, because the boundaries hadn't been established yet--50 percent of which salmon? So, after more of that questioning, there was a recess and the tribal attorneys were huddling and muttering amongst themselves, "We're going to charge him with perjury; he's contradicting himself and just trying to duck the questions."

I said, "No he isn't, he's smarter that you are. You don't know the right questions--there are only three of them. Ask him how many coho are entering Puget Sound; ask him how many  have been caught already by the non-tribal fishery; and ask him how many are required for spawning. We can figure out the difference between the run size and how many have been caught." And they said, "Those are good questions, but we don't want to ask them." And the guy from Washington's Department of Fisheries said, "Well, I don't want to ask those questions either." So I went to the federal man from the solicitor's office, and he said, "Those are very good questions and they'll help the judge, but I don't want to ask them."

Q: Why didn't they want to ask the questions?

Whitney: Because that would put them, the tribal attorneys, in the awkward position of looking like they were saying that the state's doing all right; that there is still 50 percent of the fish left depending on where you're counting them. And looking at the total entering Puget Sound, which was all we had to go by, that there were still harvestable numbers remaining. They were afraid that their clients would not be pleased with that outcome. The state guy had his own motives, and the federal guy didn't want to offend the tribes. So I found myself up there with the attorneys questioning a witness. I asked my questions, he answered them, and just as I suspected, the numbers showed there were still harvestable fish. I presented the conclusion that there are still harvestable numbers available to the tribes and that they should be able to take 50 percent. Judge Boldt took my recommendation and went with it.

Q: What made this decision so important?

Whitney: There had been lawsuits over the years, ever since the treaties were negotiated in the 1850s, a whole set of them at various places involving various tribes. The tribes reserved the right to fish in their usual and accustomed places. It was only years after that, when the number of settlers began to increase and they started to build fences and establish ownership, that they tried to exclude the tribes from their properties. Well that's just one example, and generally speaking, the courts dodged a bullet for all those years until Judge Boldt came along. Judge Boldt's groundbreaking step was the 50 percent provision. He figured you had to specify what the share was or it was meaningless.