“We Take This Opportunity to Repudiate This Case”: Washington Supreme Court Reverses 1916 Ruling in Tribal Fishing Case

Compelled to correct an injustice committed by its 1916 bench, the Washington State Supreme Court on July 10th reversed an...

Compelled to correct an injustice committed by its 1916 bench, the Washington State Supreme Court on July 10th reversed an old ruling that mandated criminal charges against a Yakama Nation tribal member for fishing outside of his reservation on traditional tribal fishing grounds.

The 1916 state Supreme Court ruling not only insisted on criminal charges for Alec Towessnute, but went to lengths to dismiss tribal sovereignty and treaties giving tribal members rights to fish in traditional fishing areas, as well as to disparage tribes and their members.

“This court characterized the Native people of this nation as ‘a dangerous child,’ who ‘squander[ed] vast areas of fertile land before our eyes,’” says the new Supreme Court order reversing the 1916 ruling.

“The opinion in State v. Towessnute is an example of the racial injustice described in this court’s June 4, 2020 letter, and it fundamentally misunderstood the nature of treaties and their guarantees, as well as the concept of tribal sovereignty,” the order says.

The Court on June 4 issued an open letter calling on the state’s legal community to take individual and collective action to address the racial injustice plaguing the criminal justice system and nation’s institutions.

Alec Towessnute was a member of the Confederated Tribes and Bands of the Yakama Nation who in 1915 was fishing near Prosser, about five miles outside the Yakama Reservation using traditional tribal fishing methods. Towessnute was arrested and, like many tribal members throughout the Pacific Northwest being arrested for fishing off tribal land, asserted that he was fishing according to treaty rights. A Benton County Superior Court judge agreed with Towessnute and dismissed the charges, but the county prosecutor appealed, and in 1916 the state Supreme Court mandated that the criminal charges be reinstated.

In that ruling, Justice Frederick Bausman had this to say about fishing rights detailed in tribal treaties: “These arrangements were but the announcement of our benevolence which, notwithstanding our frequent frailties, has been continuously displayed. Neither Rome nor sagacious Britain ever dealt more liberally with their subject races than we with these savage tribes, whom it was generally tempting and always easy to destroy and whom we have so often permitted to squander vast areas of fertile land before our eyes.”

A descendant of Mr. Towessnute, Yakama Nation member Johnson Meninick, spent years working to have the fishing convictions of his family members reversed following the famous 1974 “Boldt” federal court ruling upholding Pacific Northwest tribal fishing rights established in treaties.

The Washington Legislature in 2014 passed a law allowing pre-1975 convictions of tribal members for fishing in traditional locations to be vacated upon petition, but because some of Mr. Towessnute’s records were missing, his conviction could not be vacated by lower courts despite years of effort by Mr. Meninick, who died April 19.

Shortly after Mr. Meninick’s death, attorney Jack Fiander contacted the state Supreme Court with a request to reverse the 1916 ruling and to vacate any conviction of Mr. Towessnute. Fiander had spent years representing tribal family members in their efforts to clear the unjust convictions.

“Withdrawing the [1916] opinion will go a long way toward healing wounds that resulted from the rift between the State of Washington and Washington tribes over treaty fishing right,” Fiander said in his letter making the request. “I can think of no better way to correct the historical injustice to Alec Towessnute by the Court, and no better way to honor the memory and service of his descendant, Johnson Meninick, who spent a lifetime advocating for tribal treaty fishing rights.”

Washington Attorney General Bob Ferguson supported the petition, saying that the AG’s Office had argued against Mr. Towessnute in 1916 “and embraces the effort to readdress the issue now,” and that the 1916 opinion “is widely considered one of Washington’s most culturally insensitive court decisions regarding treaty rights.”

The Supreme Court took up the petition by Mr. Fiander, unanimously agreeing that the 1916 ruling was unjust and worse, reflected racist attitudes towards Native people.

“We take this opportunity to repudiate this case, its language, its conclusions, and its mischaracterization of the Yakama people,” the order says. “We cannot forget our own history, and we cannot change it. We can, however, forge a new path forward, committing to justice as we do so.”

Taking a step not common among state Supreme Courts, today’s order was read from the bench on behalf of the court by Associate Justice Raquel Montoya-Lewis, the first Native American justice in Washington state.

The Order and supporting documents, including the Appellant’s Brief, Appellant’s Reply Brief, Respondent’s Brief, and the original opinion, State v. Towessnute 89 Wash. 478 1916 can be found on our website: http://www.courts.wa.gov/. A recording of Justice Montoya-Lewis reading the Order is also available online: https://www.youtube.com/watch?v=mDD-zy573Vo&feature=youtu.be.

– Washington State Courts

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