Post by: bigtex on January 14, 2014, 12:43:40 AM
Now some of you may know that under state law basically anybody can petition the court for vacation of crimes they have committed, so why do we need this bill. Lets look at the wording. The wording for all other crimes as written into law "If the court finds the applicant meets the tests prescribed in subsection (2) of this section, the court may in its discretion vacate the record of conviction..." The wording under the proposed tribal section, "the court shall vacate the record of conviction if..." Basically the court has discretion to vacate other offenses, but will not have discretion to vacate the tribal fishing convictions.
The bill:
Every person convicted prior to January 1, 1975, of violating any statute or rule regarding the regulation of fishing activities, including, but not limited to, RCW 75.08.260, 75.12.060, 75.12.070, 75.12.160, 77.16.020, 77.16.030, 77.16.040, 77.16.060, and 77.16.240 who claimed to be exercising a treaty Indian fishing right, may apply to the sentencing court for vacation of the applicant's record of the misdemeanor, gross misdemeanor, or felony conviction for the offense.
Notwithstanding the requirements of RCW 9.94A.640, the court shall vacate the record of conviction if:
(a) The applicant is a member of a tribe that may exercise treaty Indian fishing rights at the location where the offense occurred; and
(b) The state has been enjoined from taking enforcement action of the statute or rule to the extent that it interferes with a treaty Indian fishing right as determined under United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), any posttrial orders of that court, or any other state supreme court or federal court decision.
Bill sponsors are Sawyer, Zeiger, Appleton, Angel, DeBolt, Blake, Haler, McCoy, Wilcox, Fitzgibbon, Hurst, Freeman, Hunt, Santos, and Ryu
http://dlr.leg.wa.gov/billsummary/default.aspx?Bill=2080&year=2013 (http://dlr.leg.wa.gov/billsummary/default.aspx?Bill=2080&year=2013)
Post by: Swannytheswan on January 14, 2014, 02:07:55 AM
Post by: bigtex on January 20, 2014, 09:48:55 AM
Post by: Knocker of rocks on January 20, 2014, 09:51:54 AM
Post by: ICEMAN on January 20, 2014, 10:08:00 AM
IE: have legislators stepped forward to get pre-01/01/1975 convictions vacated for non-indians?
So we now have a propsed law that will give relief based upon ones race? Really?
Heck no. I do not support the bill.
Post by: bigtex on January 20, 2014, 10:21:39 AM
Under this bill, the court will not have discretion and must grant the vacation of these crimes relating to tribal members.
Post by: ICEMAN on January 20, 2014, 10:40:55 AM
Anybody can go in today and get a conviction vacated. These tribal members can go in today and get these convictions vacated. However, right now the court has discretion whether or not to vacate these crimes.
Under this bill, the court will not have discretion and must grant the vacation of these crimes relating to tribal members.
Funny, when you look at the reality of some of these bills.... IMHO, this is not a good bill as it is directed only at helping once race of people.
Not everyone who attempts to get their convictions vacated actually gets them vacated. But, if you are a tribal member, this will be your newly awarded right. They must vacate the conviction. Nice.
I am a big fan of letting the current legislation work. I see no reason to draw this race-line between those prosecuted in this state.
Can you imagine changing the wording in the proposed legislation to benefit white people only?
Post by: Swatson on January 20, 2014, 10:59:57 AM
Anybody can go in today and get a conviction vacated. These tribal members can go in today and get these convictions vacated. However, right now the court has discretion whether or not to vacate these crimes.
Under this bill, the court will not have discretion and must grant the vacation of these crimes relating to tribal members.
Funny, when you look at the reality of some of these bills.... IMHO, this is not a good bill as it is directed only at helping once race of people.
Not everyone who attempts to get their convictions vacated actually gets them vacated. But, if you are a tribal member, this will be your newly awarded right. They must vacate the conviction. Nice.
I am a big fan of letting the current legislation work. I see no reason to draw this race-line between those prosecuted in this state.
Can you imagine changing the wording in the proposed legislation to benefit white people only?
:tup: :yeah:
Post by: bigtex on January 20, 2014, 11:07:34 AM
I wonder how many people 21 and over who were convicted of possession of marijuana would be at the courthouse?
Post by: ICEMAN on January 20, 2014, 11:09:37 AM
Also, Bigtex, maybe in another thread I would love your input regarding tribal member arrests which occur off reservation and the lack of county/state prosecution of these crimes.
Post by: snowpack on January 20, 2014, 11:11:54 AM
Post by: snowpack on January 20, 2014, 11:15:12 AM
With this bill we may as well just make a bill that says if you've ever been convicted of a crime, and that offense is now legal, you must have the conviction vacated.I think that is different. The people in your example were under the laws of the state at the time they committed those crimes. The fishing thing, those laws never should've applied to those certain tribes to begin with.
I wonder how many people 21 and over who were convicted of possession of marijuana would be at the courthouse?
Post by: ICEMAN on January 20, 2014, 11:15:15 AM
I'm not seeing the problem with this other than being overdue. They were wrongly charged/convicted (for the fishing--not some of the other associated charges). Should've been done right after Boldt. It only focuses on treaty tribal members, not all Indians.
No, actually re-read the posts. The tribal members were legally convicted for crimes that later would not have been crimes.
Should a statuatory rape conviction be removed when the female victim becomes 18yr old?
Post by: trophyhunt on January 20, 2014, 11:27:41 AM
i have to agree also, I vote no.Anybody can go in today and get a conviction vacated. These tribal members can go in today and get these convictions vacated. However, right now the court has discretion whether or not to vacate these crimes.
Under this bill, the court will not have discretion and must grant the vacation of these crimes relating to tribal members.
Funny, when you look at the reality of some of these bills.... IMHO, this is not a good bill as it is directed only at helping once race of people.
Not everyone who attempts to get their convictions vacated actually gets them vacated. But, if you are a tribal member, this will be your newly awarded right. They must vacate the conviction. Nice.
I am a big fan of letting the current legislation work. I see no reason to draw this race-line between those prosecuted in this state.
Can you imagine changing the wording in the proposed legislation to benefit white people only?
:tup: :yeah:
Post by: PlateauNDN on January 20, 2014, 12:57:39 PM
I'm not seeing the problem with this other than being overdue. They were wrongly charged/convicted (for the fishing--not some of the other associated charges). Should've been done right after Boldt. It only focuses on treaty tribal members, not all Indians.
No, actually re-read the posts. The tribal members were legally convicted for crimes that later would not have been crimes.
Should a statuatory rape conviction be removed when the female victim becomes 18yr old?
Was it ever written or legal for the female or the male to commit the act? That's the question? Was it ever legal to commit statutory rape? Was there a treaty or constitution saying it was the right of the person to commit the rape?
I don't think so, but it was written and placed into "the supreme law of the land", thr constitution that we would be able retain and continue to exercise our rights to fishing.
Big difference between rape and guaranteed rights.
Agreed.
Also, Bigtex, maybe in another thread I would love your input regarding tribal member arrests which occur off reservation and the lack of county/state prosecution of these crimes.
Why not ask here since its dealing with jurisdiction issues? Why not ask or give an example?
Post by: PlateauNDN on January 20, 2014, 01:14:58 PM
I'm not seeing the problem with this other than being overdue. They were wrongly charged/convicted (for the fishing--not some of the other associated charges). Should've been done right after Boldt. It only focuses on treaty tribal members, not all Indians.
No, actually re-read the posts. The tribal members were legally convicted for crimes that later would not have been crimes.
Should a statuatory rape conviction be removed when the female victim becomes 18yr old?
Was it ever written or legal for the female or the male to commit the act? That's the question? Was it ever legal to commit statutory rape? Was there a treaty or constitution saying it was the right of the person to commit the rape?
I don't think so, but it was written and placed into "the supreme law of the land", thr constitution that we would be able retain and continue to exercise our rights to fishing.
Big difference between rape and guaranteed rights.Agreed.
Also, Bigtex, maybe in another thread I would love your input regarding tribal member arrests which occur off reservation and the lack of county/state prosecution of these crimes.
Why not ask here since its dealing with jurisdiction issues? Why not ask or give an example?
I take ot since this seems like a surprise then I take it you haven't read or heard about retrocession of PL-280?
Post by: runamuk on January 20, 2014, 01:22:04 PM
I'm not seeing the problem with this other than being overdue. They were wrongly charged/convicted (for the fishing--not some of the other associated charges). Should've been done right after Boldt. It only focuses on treaty tribal members, not all Indians.
No, actually re-read the posts. The tribal members were legally convicted for crimes that later would not have been crimes.
Should a statuatory rape conviction be removed when the female victim becomes 18yr old?
Was it ever written or legal for the female or the male to commit the act? That's the question? Was it ever legal to commit statutory rape? Was there a treaty or constitution saying it was the right of the person to commit the rape?
I don't think so, but it was written and placed into "the supreme law of the land", thr constitution that we would be able retain and continue to exercise our rights to fishing.
Big difference between rape and guaranteed rights.Agreed.
Also, Bigtex, maybe in another thread I would love your input regarding tribal member arrests which occur off reservation and the lack of county/state prosecution of these crimes.
Why not ask here since its dealing with jurisdiction issues? Why not ask or give an example?
I decided to look into this and as far as i can tell yes statutory rape was legal and not even defined as such until the 70's (where there were some indecent liberties laws) but from what I find statutory rape as we know it today became illegal in about 1988...so :dunno:
Post by: PlateauNDN on January 20, 2014, 01:30:15 PM
Post by: runamuk on January 20, 2014, 01:45:01 PM
Thanks for checking run but as I asked was it weitten in documents and into the constitution as being a retained right? There was no law for statutory rape but I'm sure there were laws for rape?not really until women started to gain rights as persons vs property we really had no right if a man wanted to marry a 12yr old it was his right. People have forgotten that its been in the last 150 years that so many of these rights we take for granted and laws we assume have always been. Children were also property basically and had no real rights until the child welfare and labor laws came about back in the 40's 50's and 60's
Post by: bigtex on January 21, 2014, 11:44:30 AM
Does this mean if a court rules that a certain law in WA is unconstitutional everyone MUST have their convictions vacated? If the law loaded firearm in a motor vehicle law which was revised in 2012 is viewed as unconstitutional does that mean every person convicted under the law as it was revised in 2012 MUST get their convictions vacated?
Post by: ICEMAN on January 21, 2014, 12:03:17 PM
Here's my view. Up until Boldt it was against state law for these treaty tribal members to net, they were convicted of numerous crimes. Boldt says those acts are legal for those treaty tribes. Those convictions still stand because at the time of the conviction it was against state law. This bill says a judge MUST grant a vacation of those convictions if the individual petitions for it.
Does this mean if a court rules that a certain law in WA is unconstitutional everyone MUST have their convictions vacated? If the law loaded firearm in a motor vehicle law which was revised in 2012 is viewed as unconstitutional does that mean every person convicted under the law as it was revised in 2012 MUST get their convictions vacated?
According to some on here it does. Sort of like a "do-over" button.
Guys, you can't take it back. Unless under this ill-conceived and racially dividing proposed law, then the tribes can take it back, you cannot.
Post by: Curly on January 21, 2014, 12:13:08 PM
Post by: bigtex on January 21, 2014, 04:10:05 PM
The substituted bill not only includes "the Boldt decision" but also the Sohappy v Smith case which originated out of Oregon
Post by: bigtex on January 21, 2014, 04:13:49 PM
"While this measure is small and does not do the issue justice, it is a starting point. Few things are more important to the culture of a tribe than fishing, which the state stole from the tribes. This is an important part of history for tribes and to remember the tribal ancestors who fought for fishing rights.
Billy Frank was first arrested for off-reservation fishing when he was 14 years old, after his family was moved off their reservation land when Fort Lewis was established. Billy Frank continued to be arrested for off-reservation fishing until 1973, before the Boldt decision was decided and affirmed in 1979.
The bill also should include civil contempt convictions, which are not necessarily included within scope of this bill. Hank Adams served a year sentence for an offense that would not be covered by the bill. Some protesters were arrested for civil contempt violations. Six Nisqually members served 30 days in jail for civil contempt charges. Dick Gregory served the longest fishing sentence, six months, for defending fishing rights. Most charges in the fishing resistance were dismissed or acquitted in the 1950s and 1960s. Some of the history of that era should be capsulized in a bill report from the House. State courts must be made aware of these convictions.
The 80 convictions for state fishing violations before 1975 may not all be alive or all be tribal members. Indian culture must adapt to changes, but in many tribal customs the pain and burden of ancestors is passed along to future generations after their death. It is very important to wash away these burdens. It is important in tribal culture to own up to mistakes and to make matters right. This was a very dark chapter in Washington history and this bill is an opportunity to close that chapter and to open a new era where the state owned up to its mistakes.
Carrying unjust convictions has affected the ability of tribal members to become effective elders. One member could not travel to Canada because of a fishing conviction from before the Boldt decision. Another tribal elder was prohibited from adopting his granddaughter because of a past conviction."
Post by: bigtex on February 28, 2014, 08:21:36 PM
The bill passed out of the Senate Law and Justice Committee today with a unanimous vote. The members of the committee are Senators Padden, O'Ban, Kline, Darneille, Pearson, Pedersen, and Roach. The bill now goes on to a full Senate vote then on to the Governor for signing.
Post by: Curly on March 01, 2014, 09:14:22 AM
The substituted bill not only includes "the Boldt decision" but also the Sohappy v Smith case which originated out of Oregon
The Sohappy case is interesting. There was a sting operation named "Salmon Scam (http://www.nwcouncil.org/history/SalmonScam)" that nabbed David Sohappy.
Quote
Eventually, the arrests numbered 75. An affidavit filed in federal court in Seattle alleged that as much as 53 tons of salmon, steelhead and sturgeon were taken illegally by the defendants over a 14-month period. A tribal court acquitted Sohappy, but he, his son, David Sohappy, Jr., and Bruce Jim of Warm Springs, Oregon, a member of the Confederated Tribes of the Warms Springs Reservation, were convicted in federal court and sentenced to five years in prison in 1983 for various violations of the Lacy Act, which makes violations of state and tribal game laws a federal offense.
I found this quote to be interesting too:
Quote
In an interview filed among oral histories in the collection of the Center for Columbia River History at the Oregon Historical Society, Sohappy commented that the provision in the 1855 treaties that reserves the Indians’ right to fish “in common with citizens of the Territory” meant other Indian tribes that fished in the Columbia at the time the treaties were signed, not non-Indians:
. . . the four tribes of Nez Perce, Umatilla, Warm Springs and the Yakamas — not with the multi-nationals or the non-Indians. That's the way they understood it: in common with each other from the four tribes, not the whites. And they said the law is supposed to be interpreted the way the Indians understood it.
So the way the indians interpret the 1855 treaty, they claim that non-natives have no rights to fish. :yike:
Post by: bigtex on March 05, 2014, 09:12:55 PM