In a highly unusual move, the Washington Supreme Court last week issued an order to recall the mandate involving an opinion it issued in 1916 in the case of State v. Towessnute, 89 Wash. 478, 154 P. 805 (1916).
A little background first. Mr. Towessnute was a member of the Yakama Nation, fishing in the usual and accustomed waters of the Yakama Nation without a state-issued fishing license. The Yakama Treaty, ratified by the US Senate in 1855, protected the Yakama Nation’s right to fish in the places the tribe has historically fished.
Despite the existence of the Treaty, Mr. Towessnute was charged with multiple fishing crimes. Mr. Towessnute moved to dismiss the charges, arguing he was exercising his treaty fishing rights and had not committed any crime. The trial court agreed and in 1915 dismissed the charges.
The Washington Supreme Court disagreed and reinstated the charges in 1916. In the process, as the Order notes, the court both improperly rejected the concept of Indian sovereignty and characterized Native Americans as “a dangerous child,” who “squander[ed] vast areas of fertile land before our eyes.”
Yikes.
In its Order, the court recognized its 1916 opinion was an injustice that relied on racial stereotypes. It opened with a quote from the court’s June 4, 2020 open letter to the legal community, in response to the George Floyd killing and the unprecedented protests against state-sponsored racism and violence against the Black community. In that letter all nine justices recognized: “The injustices still plaguing our country has its roots in the individual and collective actions of many, and it cannot be addressed without the individual and collective actions of us all.” The court recognized that some opinions of the court are unjust and their continued existence continues to cause harm.
As a result, when the descendants of Mr. Towessnute sought vacation of any conviction, supported by the Washington Attorney General, the court elected to exercise its discretion to recall the mandate in the case and vacated any convictions that may have resulted from its opinion “to serve the ends of justice.”
The court concluded that it cannot forget or change its own history. But the court “can, however, forge a new path forward, committing to justice as we do so.”
In an even more unusual move, Justice Raquel Montoya-Lewis read the order from the bench. Justice Raquel Montoya-Lewis is Washington’s first Supreme Court justice of Native American descent.