When the framers of the Constitution of the United States met in Philadelphia, they sought to form a more perfect Union by establishing a national government. The Constitution expresses the general principle that certain powers were delegated to the newly formed national government. In order to clarify the relationship of the states and the people to the federal government, the first Congress proposed a series of amendments to the Constitution on September 25, 1789. Ten Amendments were ratified and adoption was certified December 15, 1791. The tenth Amendment to the Constitution states:
    "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the State respectively, or to the people."
    Nowhere in the Constitution is the power delegated to the federal government to manage fish and wildlife resources. Development of management and conservation programs was "reserved" by the various states and not given away. The principle of the states’ rights to manage their fish and game resources for the benefit of all citizens, regardless of race, creed or ancestry, would seem to be beyond dispute.
    Not so! As early as 1916, the federal government argued that it possessed the authority to manage off-reservation Indian fishing and hunting activities in derogation of the states’ right to protect these natural resources for the benefit of all citizens. This argument was rejected by the Supreme Court of the United States which stated:
    "…We are unable to take this view. It is said that the State would regulate the whites and that the Indian tribe would regulate its members, but if neither could exercise authority with respect to the other at the locus in quo, either would be free to destroy the subject of the power. Such a duality of sovereignty instead of maintaining in each the essential power of preservation would in fact deny it to both."
    In spite of this rebuff at the hands of the United States Supreme Court, the federal government has tenaciously attempted to "sell" this proposition. In 1925, the Department of Justice argued that the federal government could regulate on-reservation fishing activities by members of the Quinault Tribe of Indians in the Sate of Washington. The argument was again rejected. In 1941, the Department of Interior sought to enforce certain regulations adopted pursuant to the Migratory Bird Treaty to an Indian hunting within the boundaries of his reservation in the State of Idaho. The Court disappointed the Department of Justice.
    In spite of these judicial setbacks, the federal government once again asserted its spurious argument in a case which arose shortly after the admission of the State of Alaska into the Union in 1958. The Department of Justice, with a singular lack of imagination, vigorously argued that the State of Alaska was ousted of authority to regulate or manage commercial net fishing activities by Alaskan natives. It might be thought that this argument would be relegated to oblivion in light of the comment made by the Supreme Court:
    "The United States wisely abandoned its position that Alaska has disclaimed the power to legislate with respect to any fishing activities of Indians in the state."
    In apparent recognition of the right of a state to manage fish and game resources, Mr. John A. Carver, Jr., undersecretary of the Department of Interior, testified before the Senate Committee on Interior and Insular Affairs on August 5, 1964 that the Department of Interior did not possess authority to regulate off-reservation Indian fishing.
    Yet less than a year later, the same federal official promulgated proposed regulations on behalf of the Department of Interior purporting to regulate off-reservation Indian fishing activities.
    What happened between August 5, 1964 and July 5, 1965 to change Mr. John A. Carver’s mind? NOTHING! The Constitution of the United States did not change. The Supreme Court of the United States’ interpretation of the states’ authority did not change. Congress did not pass any statutes granting fish or wildlife authority to the Department of Interior. Mr. Carver’s moment of testimonial candor was short-lived. The federal Government was at it again.
    In the State of Washington, representatives of the federal government urged state acquiescence in federal regulation and threatened intervention by the Department of Justice to achieve their unconstitutional goal if the state did not comply. I recall being telephoned by Brock Adams, then the United States Attorney for Western Washington,(now Secretary of Transportation in the Carter Administration), and told to appear at his offices in Seattle. I was told that my clients, the Washington Department of Fisheries and Department of Game, were under investigation by the FBI for enforcing state conservation laws. The Department of Justice was apparently seriously looking into the possibility of charging state officers with violation of the Civil Rights Act for enforcing state laws against commercial netting activities on steelhead trout and salmon. Cooler heads prevailed in Washington, D.C. Someone in power finally realized there was little chance of success in initiating such Orwellian litigation. Back to the drawing boards they went.
    You don’t have to be a fortune teller to know what happened next. The Department of Justice intervened in an Indian fishing case pending in the Supreme Court of the State of Washington and presented its shop-worn arguments in 1967. This case was appealed to the United States Supreme Court where the Department of Justice was again turned down. The Court reaffirmed the right of a state to regulate both Indian and non-Indian fisherman in off-reservation waters.
    The result of the affirmation of the state’s right to manage its fish and game could hardly be labeled an unforeseen contingency by the federal government. New tactics were clearly called for. They were not long in coming.
    The federal government initiated litigation in 1970 against the State of Washington, allegedly in fulfillment of its trust relationship with the Indians. The Department of Justice asserted that the treaties with the various Indian tribes were the supreme law of the land within the meaning of Article VI, paragraph 2 of the Constitution (the Supremacy Clause). They sought an injunction prohibiting state officers from enforcing state conservation laws, rules or regulations against Indians who desired to engage in commercial fisheries in off-reservation waters. It was charged:
    "…The State has otherwise harassed and interfered with tribal members in the exercise of treaty fishing rights and state officials assert their intention to continue to do so. But in so doing, and in threatening such action against the Indians, the State, its officers and agents are acting wrongfully and in derogation of rights secured by treaties.
    "As a result of these wrongful acts of the State the tribes and their members are being unlawfully deprived of their treaty rights and privileges and immunity to fish at many of their usual and accustomed places and have suffered, and will continue to suffer, irreparable damage."
    In a nutshell, the federal goal was to hamstring the state’s ability to protect the fishery resource. No mention was made in the complaint of the management consequences of allowing a large number of Indian tribes to fish as they pleased. Federal Judge George Boldt rendered his decision and issued the requested injunction in February, 1974.
    The State of Washington stands stripped of its power to enforce conservation laws, rules or regulations as they might apply to Indians. The federal bureaucracy is now on the way to achieving its goal. Indian treaties have become the guise under which the federal government will expand its authority at the expense of a state. State management is now supplanted by federal edict from a federal court.
    The Supreme Court of the United States has never ruled that states lack the power to regulate off-reservation fishing or hunting activities by Indians. It is only when you leave the Supreme Court that you find yourself entangled in a morass of conflicting rules, qualifications, interpretations and exceptions which can only be explained as misguided efforts on the part of lower courts to do something for Indians.
    Ultimate responsibility for fishery management is now vested in a federal district court. Such a result can only lead to chaos, confusion and failure. Federal attorneys, in argument to the Washington Supreme Court, have admitted frustration in enforcement of Boldt’s decision. They have stated that Judge Boldt almost called out the Navy and the Coast Guard to enforce his fish management orders this year. A state must stand by and watch with dismay as scientific fishery management performed by qualified personnel is smashed.
    Fishery management basically occurs on four levels. The first level is when the resource is numerous and only limited numbers of people take it. No management of limitation is needed on harvest. These conditions prevailed at the time of the treaties with the Indians. The second level of resource management occurs when the use level reaches such proportions that, in order to perpetuate the fish run, it is necessary to limit catch (rather than participants). The second level usually occurs with commercial exploitation which adversely impacts the reproductive capacity of the resource.
    The third level of management involves a prohibition against commercial take and reserves the resource to recreational use. As population increases, and users increase, restrictions on gear use are applied (such as hook and line only) to assure a wide distribution of the catch.
    The fourth level of management involves total prohibition of any catch in order to preserve the resource. This occurs when the resource becomes so limited that it is incapable of sustaining any harvest. At this point, it has become like a museum piece, to be seen but not used.
    In the State of Washington, management of steelhead trout has progressed over the years from the first to the third level. In terms of numbers, the steelhead resource is small as compared to salmon. State law designated steelhead as a game fish and prohibited its commercialization. Judge Boldt’s opinion overruled state law and opened steelhead to commercial fishing and sale by Indians. We are taken back to the first level of management. If Indian commercialization of steelhead continues, we may shortly expect to reach the forth level of management.
    The horse is out of the barn. Having deliberately attacked the state and provided the scalpel for its judicial emasculation, how will the federal government exploit this power vacuum? The answer is coming to two fronts.
    Plans are underway to implement Boldt’s ruling to the tune of several million dollars. Federal tax dollars ate being poured into acquisition of fishing boats and gear for Indians, construction, operation and maintenance of fish propagation facilities on Indian reservations, employment of federal fish biologists to act as "advisors" to the various Indian tribes, development of fish canning, freezing and marketing operation for Indians and generally supporting Indians governmental activities, lawyers and public relations efforts.
    An annually renewable resource worth millions of dollars is "up for grabs" and the federal government is doing all it can to encourage Indian exploitation of these resources at the expense of all other citizen users, sport and commercial alike. The volume of federal dollars being poured into this effort is being augmented at an amazing rate.
    At the same time, the federal government is now recognizing that "self-regulation" by a large number of Indians tribes, with each setting their own harvest limits, is unworkable and somewhat unfair to the public. The loose control asserted by a single federal judge over Indian "self-regulatory" commercial harvesting activities is, in reality, inconsistent with either achievement of a sound conservative program or a fair allocation of the resources between Indian and non-Indian citizens.
    Having judicially destroyed the state’s capability to manage it resources for the benefit of all citizen, the federal establishment now urges Congressional action designed to achieve a modicum of order out of the chaos they have created. It is not surprising to learn that federal control is the method proposed for ameliorating the absurd results obtained by the federal government in its suit against the State of Washington. A member of Washington’s Congressional delegation, who is friendly to the federal establishment’s interests, has already advocated this "solution." Like Pavlov’s dog, the federal bureaucrats will slobber when that bell is finally rung.
    State conservation agencies sit back in wonderment and awe of the latest federal power play. They watch their fishery conservation programs, which are the product of years of intensive efforts, crumble and disintegrate under the impact of the Boldt opinion. They are now willing to accept any crumbs offered by the federal government in order to salvage the resource. Even federal control doesn’t seem too bad when compared to existing conditions.
    Swimming against the federal stream is a difficult task, but usurpation of state fishery management prerogatives should not go unchallenged.
    Congress has expressed its will regarding Indians-but it has been ignored by the federal bureaucrats. In 1953, the House of Representatives and the Senate passed a Joint Resolution which states:
    "Whereas, it is the policy of Congress as rapidly as possible, to make the Indians within the territorial limits of the United States subject to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens of the United States, to end their status as wards of the United States, and to grant them all the rights and prerogatives pertaining to American citizenship; and
    "Whereas, the Indians within the territorial limits of the United States should assume their full responsibilities as American citizens…"
    Since 1953, the Congressional policy has not only been ignored by the federal bureaucrats, it has been actively flouted. Instead, they have fostered and encouraged the creation of Indian super-citizens, with legal rights dependent upon bloodline. Indian citizens have been given immunity from the application of state conservation laws in off-reservation areas.
    Beyond the newly established immunity from state conservation laws, the federal government desires complete and absolute supervisory authority over all activities of the State of Washington, be they executive, legislative, judicial, or administrative insofar as they feel that Indian "rights" may be adversely affected.
    Stan Pitkin, U.S. Attorney, filed the following supplemental complaint before Judge George Boldt which asks the following relief:
    "1. That this Court declare that Plaintiff Tribes’ treaty fishing rights include, among the harvestable fish which the tribes are entitled to take, hatchery propagated fish or other fish attributable to artificial propagation or transplanting activities.
    "2. That this Court declare that Plaintiff Treaty Tribes have an interest in actions taken or authorized by the Defendant State which significantly and adversely affect fish populations and fish habitats so as to reduce significantly the number or quality of fish available under treaty rights at usual and accustomed places.
    "3. That this Court shape relief to safeguard the rights thus secured by prescribing remedies to ensure protection of the affected Plaintiff Treaty Tribes’ fishing rights in all activities of the Defendant State of Washington and its agencies which have a significant adverse impact upon the fish populations and habitats to which their treaty rights apply." (Emphasis added.)
    This is dangerously close to a dictatorship where all actions of the State of Washington are subject to the whim of a federal judge who enjoys a lifetime appointment and is not accountable to the people.
    It has been generally assumed that the Civil War was fought to establish the premise of equal treatment under law. The Fourteenth Amendment to the Constitution, a product of the Civil War, embodies these concepts which are basic to our democratic form of government. Yet, with the support of federal bureaucrats, George Orwell’s dictum is validated: "All animals are equal. But, some animals are more equal than others."

Editor’s Endnote: The Boldt Decision occurred in 1974. This Chapter was published in 1976. Since 1974, with all kinds of federal support, Indians have used thousands of gilnets in Washington’s rivers, selling and sometimes abandoning in the rivers thousands of tons of prime game fish. On March 16, 1999, the federal government listed several species of fish, including salmon, as endangered. It took twenty- five years to go from level one management to level four as predicted by Mr. Coniff. Endangered species designation will further increase federal control of all kinds of activities in Washington State. Meanwhile, National Marine Fisheries Service’s senior analyst, Bob Turner, has said that Indians don’t need to comply with the endangered species designation.

This article was published as Chapter 18 of the book, Indian Treaties American Nightmare, by C. Herb Williams and Walt Neubrcch, published in 1976 by Outdoor Empire Publishing Inc; 511 Eastlake Ave. East; P. O. Box C-19000; Seattle, WA 98109