Remembering the trial

Charles Wilkinson, Distinguished Professor and Moses Lasky Professor of Law at the University of Colorado Law School, and author of 14 books on Indian law and history, described the U.S. v. Washington trial.


Through the proceedings, Judge Boldt came to know and feel a high respect for an industrious people who would never surrender their rights to harvest the seas, forests and meadows. He could see how the United States could have concluded that treaty-making with these nations was appropriate.

In 1970, Judge Boldt knew almost nothing about native sovereignty or culture. It was the native people at the council tables, on the river and on the shores who had the strategy, vision and fierce determination to wage a fierce campaign that at the beginning seemed impossible to everyone but themselves.

Outstanding attorneys, first-rate archaeologists, historians and scientists brought compelling facts into the courtroom and they testified for the tribes. Throughout the trial, Indian people kept silent vigil on the wooden benches in the gallery or standing against the wall of the packed courtroom. Tribal elders tool the stand and offered their accounts about aboriginal times, the treaties and the more recent times. Most of them spoke in their own languages and their testimony was based on the rich and accurate oral tradition.

Judge Boldt accepted the elders’ testimony and took that evidence into consideration and listened raptly as they spoke. Ask anyone who witnessed that trial, the elders brought the whole story together, and Judge Boldt listened open-mindedly to the case.

Federal judges have to be especially vigilant in protecting what the court has called prejudice against discrete and insular communities. Two opposite notions — majority rule and minority rights — are main building blocks of our constitution. Judges are in the best position to stand up for dispossessed people when majorities come down on minorities.

In the days of the Boldt decision, and appeals, federal judges as a whole took seriously their duty to protect rights of dispossessed people.

The transcendent meaning of the Boldt decision was to uphold the treaty rights of the northwest tribes. It also is a national case, about national obligations and values. The decision was a gift to America.

The decision recognized that the treaties remained in full force, that treaties were supreme over state laws. Tribes were entitled to exclusive fishing rights on reservation and entitled to take 50 percent in their usual and accustomed areas off reservation.

Judge Boldt ruled that the tribes were sovereign governments and had the right to be regulators of the resource.

Your forebears passed the Boldt decision onto you. Now you can preserve it and other values. You can do it, the Boldt decision proves that you can.

Posted on February 5, 2014 by kneumeyer