128 sLAde goRton: A hALf centuRy in poLitics
pletely agree with Judge Boldt and the Ninth Circuit, which “gave the In-
dians all the fish they wanted for their personal and ceremonial use. So
it’s probably five or 10 percent more. The U.S. Supreme Court ultimately
said no; ‘in common’ meant in common, and everything came out of that.”
What Gorton really rues is losing a crucial footnote—literally—that he
believes could have changed history. “It was the biggest mistake in the
practice of law I’ve ever made in my life,” he says, and prima facie evidence
that some things are better left alone.
The Supreme Court decision in the fishing rights case was first re-
ported in a “slip opinion”—one not yet formally published. “Of course
you have a right to petition for reconsideration, which is almost never
granted. But the slip opinion made it very obvious that the Supreme Court
didn’t know what it was talking about. Boldt’s jurisdiction was called the
‘case area.’ The Indians were to get this 50 percent in the ‘case area.’ But
there was a footnote in which the Supreme Court majority indicated its
belief that the ‘case area’ was roughly 40 percent of the waters of the State
of Washington, which was an error. It was everything. So the Supreme
Court, in our view, thought it was giving the Indians not 50 percent of the
fish, but 20 percent of the fish. We stewed over that in the office and de-
cided to petition for reconsideration on the grounds that they had made
this mistake. Of course we would have been happy to accept 20 percent,
even though we certainly didn’t think it was the law. We got our reconsid-
eration without arguing it. They struck the footnote, however, so the pub-
lished opinion does not include that footnote about the ‘case area.’ If we
had let it alone, there it would have been! Later, in other cases, there was
precedent, and it could have been brought up. But it was a terrible mis-
take because we were being so tough-minded.”
Gorton scoffs at the persistent accusation that his opposition to Indian
sovereignty is rooted in racism. “I find racism appalling. But I do have a
profound difference with the tribes. I don’t think they should be treated
differently than anyone else. I think the same laws ought to apply to ev-
eryone. Discrimination on the basis of treaty status is allowed by the...
Constitution, which gives Congress plenary authority. The Indians call
themselves sovereigns. The courts call them quasi-sovereigns, and there’s
a difference in that because the Congress of the United States could have
abolished every reservation in the United States of America with one stat-
ute. And the Congress of the United States could create that equality. Now
to the extent that it takes property rights, like these fishing rights, we’d
have to pay for them. But it would be a condemnation and there would be
a judgment as to what the value was, and they would receive that value.