When the Washington State Supreme Court ruled last month that states lack jurisdiction to prosecute tribal members for crimes on federal land that has been set aside for the exercise of treaty fishing rights, the court revealed more about its makeup and how we can expect future Indian law cases to be decided in Washington. See State v. Jim, No. 84716-9, 2012 WL 402051 (Wash. Feb. 9, 2012) (en banc). Summaries based on voting records are necessarily binary. However, if we treat them as one court-watching tool, and understand that every case is different, looking at how the Justices vote can be valuable – especially as we approach the day when AUTO v. Washington will be heard. Consider the current Justices’ voting patterns in recent Indian law cases:
|
Case |
Tribal Interests Prevail |
Tribal Interests Fail |
| Wright v. CTEC | MadsenOwens
Fairhurst |
ChambersC. Johnson
J. Johnson |
| State v. Eriksen | OwensC. Johnson
Chambers |
StephensWiggins
Fairhurst Madsen J. Johnson |
| State v. Jim | OwensC. Johnson
Alexander Stephens Fairhurst Chambers |
WigginsJ. Johnson
Madsen
|
Of the Justices who took part in all three cases, the common anti-tribal denominator is Justice Jim Johnson. He has sided with the anti-tribal interests in each of the three cases we use as indicators. Justice Wiggins was not on the Court for Wright, but he too has sided against tribal interests in Eriksen and Jim. While Justice Madsen authored a concurrence in Wright, which affirmed tribal sovereign immunity for tribes’ commercial activities, she has recently joined Justices Jim Johnson and Wiggins in dissent against tribal interests in both Eriksen and Jim.
AUTO will provide a very telling fourth data set, with many of the same justices as well as newly appointed Justice Steven Gonzalez taking part.
Anthony Broadman is a partner at Galanda Broadman PLLC. He can be reached at 206.321.2672, anthony@galandabroadman.com, or via www.galandabroadman.com.
