Thursday, May 16, 2024

Hundred Year Old Conviction Vacated

The Washington State Supreme Court has vacated a 1924 conviction of a member of the Yakama Nation for killing a deer on tribal land

More than a century ago, the United States government signed treaties with many of the tribal nations living in what would become Washington State. The treaty between the United States and the Confederated Tribes and Bands of the Yakama Nation explicitly enumerates many rights reserved by the Yakama people, including the right to fish in their usual and accustomed places and to hunt on open and unclaimed lands. Nevertheless, in 1924, Jim Wallahee, a Yakama citizen, was convicted of illegal hunting when he killed a deer on ceded Yakama land. Relying on precedent that has since been overturned, this court affirmed his conviction. Today we reject the harmful logic that underpins his wrongful conviction and recognize that Mr. Wallahee had a clear and enforceable treaty right to hunt that deer. Accordingly, we withdraw our previous mandate and vacate Mr. Wallahee’s conviction.

Error in 1927

Our 1927 opinion was incorrect on the law. That opinion asserted that the treaty between the United States and the Yakama Nation was terminated at statehood. Wallahee, 143 Wash. at 118-19. But treaties between the United States and Native Tribes are “the supreme law of the land and [are] binding on the State” no less than on the federal government. State v. Buchanan, 138 Wn.2d 186, 201, 978 P.2d 1070 (1999) (citing U.S. CONST. art. VI); accord Herrera, 139 S. Ct. at 1691-92. Our holding further suggested that treaty rights are a privilege granted bynthe United States government, when they are in fact fundamental rights reserved by sovereign tribes.

...Removal, allotment, and Jim Wallahee’s conviction all stem from the belief that Native Americans lack basic human and equal rights and therefore treaties with them may be disregarded. We have a duty to explicitly repudiate that belief and to disavow our opinions that reflected that belief. We do so today.


Our decision in Wallahee was incorrect about the nature of treaties and treaty-protected rights, relied on precedent that has since been abrogated, and advanced justifications for violence against Native people. Mr. Wallahee’s conviction was incorrect on the law, harmful, and an injustice.

Our nation’s history is rife with such injustices. It is no victory to sanitize the past, but there is a difference between erasing history and redressing harm. This court’s wrongful decision can be characterized as an instructive feature of the past only by those who do not feel its sting in the present. The Doctrine of Discovery and its use in law to justify state-sponsored violence are a stain on this nation. Today we take a step toward reconciliation: we grant the motion to intervene, grant the motion to recall the mandate, and grant the motion to vacate Mr. Wallahee’s conviction.

MADSEN, J. (dissenting)

While the arc of the moral universe may bend toward justice, it does not do so on its own but through the persistent work of soberly confronting our history and learning from it. Despite 200 years of national life, we have barely begun this work. The simple act of recognizing our past—its freedom and oppression, justice and violence of the majority against the minority—remains a daunting challenge. Yet, while it is important to acknowledge injustice, it is also important to consider what tools we use to address it.

In my view, whether and how—the process by which we reach back in time to review a case is equally as important as the result because it affects the integrity of the judicial system and the public’s trust in the institution. As the highest court in Washington, we must balance our duty to the individual litigant and to the collective citizens.


Adherence to precedent and our judicial process compels the result here. The Estate, the descendants of Jim Wallahee, who was convicted of illegally hunting deer, does not have standing and thus we cannot reach the merits of the Estate’s claims. By summarily recalling the mandate and vacating Wallahee’s conviction, the majority does not follow the procedure that binds all other litigants. I agree that this court’s decision in Wallahee is no longer good law, nor is Wallahee’s underlying conviction. But ignoring binding precedent and erasing the case from our history is not the way we review and overrule past cases. I respectfully dissent.

Erasing the past

I also respectfully disagree that overturning and removing Wallahee is the best solution. Doing so risks destroying physical evidence that this court has discriminated against Native people, easing the way for future generations to look back and conclude that it never existed at all. See In re That Portion of Lots 1 & 2, 199 Wn.2d 389, 401, 506 P.3d 1230 (2022). “‘A policy of whitewashing public records and erasing historical evidence of racism would be dangerous. It would risk forgetting and ultimately denying the ugly truths of racism,’” which “‘cannot be squared with the antidiscrimination’” work of those fighting to bend the moral arc of history. Id. (quoting In re That Portion of Lots 1 & 2, 16 Wn. App. 2d 505, 515, 481 P.3d 1098 (2021)); see Letter from the Wash. State Sup. Ct., supra.

Removing all trace of the offensive language and tropes in Wallahee salves the shame of discrimination by erasing that shame. It does not eradicate it. See Portions of Lots 1 & 2, 199 Wn.2d at 401. Rather than wiping away the discomfort and shame of  past decisions, allowing the case to exist (disavowed and without authority) helps ensure that future generations can see the documented history of discrimination and disenfranchisement of a people. Id. It is our history. We cannot forget it.

The 1927 opinion is linked here. (Mike Frisch)

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