126 sLAde goRton: A hALf centuRy in poLitics
Johnson adds, savoring the memory of being Gorton’s key assistant in
such a high-stakes legal battle so early in his career.^17
A group of commercial fishermen who asserted that the state had no
authority to apportion fish for any purpose other than conservation pre-
vailed in Superior Court. Next up, the Washington State Supreme Court
“not only held that the state had no authority to enforce the Boldt Deci-
sion, but that recognizing special rights for the Indians would violate
the Equal Protection Clause of the U.S. Constitution!” Ziontz, incredu-
lous, wrote in his memoirs.^ Boldt’s reaction was “breathtakingly auda-
cious,” the retired Seattle attorney adds: “He put the entire fishery under
federal supervision and ordered federal agencies to take over enforce-
ment.” Now the U.S. Supreme Court was intensely interested.^18
ehMAc oRning the u.s. supReMe couRt is in session, clerks see to one
of its oldest traditions: Quills similar to those used as ink pens in days of
yore are placed on the attorneys’ tables. Framed on Gorton’s office wall
are 14 quills, each one a souvenir of a case he argued before the court.
Half of them involved Indian issues, including the pitched debate over
taxing cigarette sales at reservation smoke shops. Chief Justice Warren
Burger observed that Gorton made “the best arguments before the Su-
preme Court of any attorney general in America.”^19 Justice Byron “Whizzer”
White, a Rhodes Scholar and fierce questioner, concurred.^ One of the ones
he lost, however, was the Boldt Decision—6–3 in the summer of 1979.
Burger joined Justices Stevens, Brennan, White, Marshall and Black mun
in voting to affirm. The dissenters were Rehnquist, Powell and Stewart.
Writing for the majority, Stevens said the language of the treaties was
as unambiguous as the high court’s decisions in six previous fishing
treaty cases. Footnoted is the appellate court’s scathing opinion that the
state had engaged in “extraordinary machinations” to resist enforcing
treaty fishing rights. “Except for some desegregation 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.”^20 Justice Powell,
writing for the dissenters, asserted however that “nothing in the language
of the treaties indicates that any party understood that constraints would
be placed on the amount of fish that anyone could take, or that the Indi-
ans would be guaranteed a percentage of the catch. Quite to the contrary,
the language confers upon non-Indians precisely the same right to fish
that it confers upon Indians, even in those areas where the Indians tradi-
tionally had fished.... As it cannot be argued that Congress intended to
guarantee non-Indians any specified percentage of the available fish, there