Charles Wilkinson, The Belloni Decision: A Foundation for the Northwest Fisheries Cases, the National Tribal Sovereignty Movement, and an Understanding of the Rule of Law, 50 Envtl. L. 331 (2020), available at https://scholar.law.colorado.edu/faculty-articles/1287.
Judge Belloni’s decision in United States v. Oregon, handed down a half-century ago, has been given short shrift by lawyers, historians, and other commentators on the modern revival of Indian treaty fishing rights in the Pacific Northwest. The overwhelming amount of attention has been given to Judge Boldt’s subsequent decision in United States v. Washington and the Passenger Vessel ruling by the Supreme Court affirming Judge Boldt. I’m one who has been guilty of that.
We now can see that United States v. Oregon was the breakthrough. In those early days, Judge Belloni showed deep understanding of the two key bodies of law and policy—classic Indian Law dating back to John Marshall and the new ideas just beginning to remake public wildlife law and policy. We can fairly doubt that Judge Boldt and the Supreme Court would have ruled as they did if Judge Belloni had not written his profoundly insightful and brave opinion. Further, the Belloni decision reached beyond Indian treaty rights per se, energizing the emerging broad and fundamental movement for Indian tribal sovereignty that has revitalized Indian Country. Even more broadly, the decision led the way in the long and difficult chain of events that finally allowed the beauty of the rule of law to rise above the contentious and seemingly insolvable disputes over Indian fishing rights in the Pacific Northwest.
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