From Winans to Wallahee: Treaties, the Washington State Supreme Court, and the Pursuit of a More Just Rule of Law

Abstract: The relationship between the United States federal government, the states, and Native Nations has long been at the core of federal Indian law. From the earliest decades of its jurisprudence, for example, the United States Supreme Court struggled in its efforts to analyze and define the rights, authorities, and interactions of Native Nations within and in relation to the evolving structure of constitutional federalism. Treaties between the United States and Native Nations were central to those decisions and provided a necessary, constitutional check against state interests intent on eliminating sovereign Native Nations. Those constitutional and structural implications thus go well beyond federal Indian law and provide important—but often overlooked—insight into the health and stability of fundamental aspects of our legal system as a whole and, therefore, the rule of law itself. Here in Washington, the Washington State Supreme Court developed its own approach to analyzing and interpreting treaty rights, which, for much of the first half of the twentieth century, largely ignored or dismissed treaties and rights reserved thereunder in favor of state interests. More recently, however, the state’s highest court has embarked on an effort to reassess and reckon with its role in perpetrating and perpetuating historical injustices. That effort has resulted in a series of decisions reconsidering the Court’s own treaty-related jurisprudence and, therefore, offers a timely and critically important opportunity to consider the potential and promise of this work. In the spirit of the 125th anniversary of the founding of the University of Washington School of Law and the centennial volume of Washington Law Review, this Article considers the fundamental issues posed by treaty-related questions and aims to draw lessons from the Washington State Supreme Court’s recent efforts to address historical injustices that might inform other, similar efforts across the country. Situating that assessment within the context of treaty rights and the sovereignty of Native Nations illustrates the power of this work to catalyze a deeper and broader reckoning with crucial questions of justice and the rule of law.