the JoLt fRoM BoLdt 127
is neither force nor logic to the argument that the same language—the
‘right of taking fish’—does guarantee such a percentage to Indians.”^21
Gorton’s opposition to the Boldt Decision helped propel him to the
U.S. Senate. Over the next 20 years, the tribes viewed his repeated efforts
to limit their sovereign immunity as an attempt to settle the score. He
was often cartooned as “The Last Indian Fighter,” a frontiersman in buck-
skins, six-guns blazing as he dodged arrows, tomahawks and spears.^20
Talking about revenge, Gorton said, was an easy way for people to avoid
arguing the merits of his assertion that non-Indians living on reserva-
tions were being deprived of their right to have their disputes heard by
neutral courts. The tribes are not separate nations “like France or Ger-
many,” but dependent nations with limited sovereignty, he maintains.^22
“My views on Indians and other minorities are simple and consistent,”
Gorton said some 36 years after Boldt. “The 14th Amendment mandates
that ‘no person’ shall be deprived of the equal protection of the laws by
reason of race. Nothing could be clearer—except to six members of the
Supreme Court. In the case of Indians, the court avoids the dilemma by
saying that the rights derive from treaty status, not race, a distinction
without a difference; a distinction that allows Indian casinos that can’t be
matched by non-Indians and that can’t be affected by the state’s policies
on gambling, good or ill. In the Boldt Decision, the Supreme Court had to
distort the plain meaning of the Stevens treaties, which gave the Indians
equal rights to fish, not 50 percent.”
Hands clasped behind his head, Gorton mused: “Ironically, my first
brush with Indian law, in my first term in the Legislature, was on the
side of the Indians in a dispute over state jurisdiction on reservations....
The view of the state from a time long before I became attorney general
was that the fundamental phrase at issue in the Boldt Decision and in the
whole case of U.S. v. the State of Washington was ‘in common with the citi-
zens of the territory.’ And what does that mean? The Indians’ view and
the United States’ view was that it meant the Indians get half of the fish.
The state’s view, which I still think is absolutely correct as a matter of law,
was that it meant that they have the same rights that the citizens did—be-
cause Indians weren’t citizens at the time the treaties were signed in 1854.
What Governor Stevens and everyone meant was that there’d be no dis-
tinction between Indians and non-Indians. The Indians would have
rights ‘in common with’ the citizens, which of course meant that 50 or 60
years later when fish began to get scarce and you began to have some kind
of conservation laws, the same laws applied to everyone.”
Gorton takes some satisfaction that the Supreme Court didn’t com-