The 1916 Washington Supreme Court decision in State v. Towessnute opens with the words, “The prior occupancy of American soil by the Indian tribes did not vest them with sovereignty or any title to the land that was ever recognized by the white race, the Indian being merely an occupant with possessory uses for subsistence, and a favored ward of the Federal government.”
Then it gets worse.
“The Indian was a child, and a dangerous child, of nature, to be both protected and restrained. In his nomadic life he was to be left, so long as civilization did not demand his region,” Justice Frederick Bausman wrote for the majority. “… Neither Rome nor sagacious Britain ever dealt more liberally with their subject races than we with these savage tribes, whomit 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.”
For more than a century, those words remained among the final in the case against Alec Towessnute, a member of the Confederated Tribes and Bands of the Yakama Nation who was arrested in 1915 … for fishing. On July 10 of this year, however, the court recalled the 1916 decision and posthumously vacated Towessnute’s conviction, with Raquel Montoya-Lewis, the court’s first Native American Justice, reading the new order.
The fight to clear Towessnute’s name and officially condemn the court’s racist language was far from easy. Having spent years representing tribal family members clearing unjust convictions, attorney Jack Fiander made a request to the Supreme Court to reverse the 1916 ruling and to vacate Towessnute’s conviction, according to a Supreme Court press release describing the background of this decision.
The following is Fiander’s account of the historic reversal.
Jack Fiander on State v. Towessnute
When I first read the 1916 decision in State v. Towessnute, I felt ill from its characterization of the tribal people of this state.
To have an official Supreme Court decision on record that referred to tribal people as “savages” who merely wandered about and squandered vast areas of fertile land in need of pupilage was, I believe, psychologically damaging—akin to being described as drunken Indians or as persons “who are good with their hands.”
In the 1990s at the request of the late Jim Wallahee’s heirs I sought to have a superior court and the Washington State Supreme Court’s 1927 decision in State v. Wallahee, 143 Wn. 2d 117 vacated. That decision held that the treaty rights of tribes in Washington state were extinguished upon the state’s admission to the union. At that time, there was no statutory authority to revisit such old cases. It placed a burr under my saddle and that of my former law professor William Rodgers (who also was brought to tears by the Towessnute reversal).
There were challenges in finding trial court records. Back then, court records were often handwritten on onion-skin paper that crumbled to the touch. After two world wars and the passage of a century, many could not be found. What changed was that, to its credit, the Washington State Legislature had enacted a statute on the 40th anniversary of the landmark Boldt Decision allowing for persons, and the descendants of persons, wrongfully convicted of treaty fishing violations to have their convictions vacated.
When I learned that we had successfully reversed the conviction against Mr. Towessnute I felt surprise, amazement, and a feeling of hopefulness for the future, given that our relationship as tribal citizens with Washington state government, vis-à-vis treaty rights, had almost always been guarded. We are cautious inhabitants of the same territory. The decision will doubtlessly improve our relationship. That hopeful feeling began for me in 2015 when, going against tradition, the Washington attorney general supported reversal of Alec Towessnute’s conviction.
I know of many people who would next like to see the 1823 United States Supreme Court decision in Johnson v. M’Intosh expressly overruled or repudiated. That decision confirmed the “Doctrine of Discovery,” which held that native indigenous people held no title to land in America, they merely occupied it, wandering about like Towessnute’s ancestors did. The doctrine dates back to a 1493 Papal Bull issued by Pope Alexander VI which established the legal justification for colonization and seizure of land not inhabited by Christians. The Church Council of Greater Seattle repudiated the doctrine of discovery in the 1980s.
The justice system only works if citizens have faith in it. For many years, tribal citizens’ participation in our justice system has involved having children removed from their homes and placed in foster care, being subjected to traffic stops at a rate higher than others, and being cited or arrested for hunting or fishing violations while trying to feed their families. The decision reversing Towessnute has restored much faith in our justice system.
The first two people I gave a copy of the decision to openly wept.