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Washington justices void 1916 tribal rights ruling as racist

UPDATED: Sat., July 11, 2020

By Gene Johnson Associated Press

SEATTLE – Washington state’s Supreme Court on Friday vacated a 1916 ruling that allowed a prosecutor to bring criminal charges against a tribal fisherman as racist and unjust.

The justices unanimously said they were compelled to void the decision, even though it was overruled in 1957, because “such past opinions can continue to perpetrate injustice by their very existence.” Justice Raquel Montoya-Lewis, the state’s first Native American justice, read the decision from the bench in Olympia.

The 1916 case concerned Alec Towessnute, a Yakama Nation member arrested after using a gaff hook, a traditional tribal fishing method, near Prosser, about 5 miles outside the reservation. Even though the Yakamas’ 1855 treaty with the United States allowed the tribe to fish in its traditional grounds, including the area where he was fishing, Towessnute was charged with multiple fishing crimes.

Like many tribal members prosecuted for fishing off reservations, Towessnute cited the treaty rights, and a Benton County Superior Court judge agreed, dismissing the charges.

But the state Supreme Court reinstated them in a decision that disparaged tribes and belittled tribal sovereignty, describing Native Americans as “a dangerous child” who squandered “vast areas of fertile land before our eyes.” The court overruled the decision in 1957, in a case recognizing the treaties as the “supreme law of the land.”

“We take this opportunity to repudiate this case, its language, its conclusions, and its mischaracterization of the Yakama people,” the justices wrote in Friday’s order. “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.”

Lawmakers six years ago passed a law allowing the vacation of pre-1975 tribal fishing convictions upon petition. One Yakama Nation member, Johnson Meninick, spent years trying to have the convictions of his family members – including Towessnute – overturned.

The state Supreme Court in 2015 declined to vacate Towessnute’s case because incomplete court records made it unclear that he was actually convicted after the charges were reinstated.

After Meninick died in April, attorney Jack Fiander, a Yakama tribal member who has worked on many cases involving tribal fishing rights, asked the high court to reconsider the case.

The court agreed, and its decision Friday cited an open letter the justices issued last month calling on the legal community to help eradicate the racism that has pervaded the justice system.

“For many years, tribal members’ relationship with the state of Washington was being arrested for fishing violations, having children removed from home and being profiled for traffic stops,” Fiander said.

“This ruling begins to restore tribal people’s faith in the court systems.”

Washington Attorney General Bob Ferguson noted that his office had argued against Towessnute in 1916 and said he embraced the effort to make amends. His office called the 1916 ruling “one of Washington’s most culturally insensitive court decisions regarding treaty rights.”

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