Judicial Regrets and the Case of the Cushman Dam

Article excerpt

    A. The Treaty as Something Given
    B. Misstatement of Treaty Purposes
    C. The Legal Mis-Treatment of Continuing Nuisances
    D. Being Judicious
    E. The Strategy of Redaction

"the announcement of our benevolence" (1)


Those were the words of the Honorable Frederick Bausman in the 1916 Washington Supreme Court opinion in State v. Towessnute. (2) Justice Bausman went on to say that the Indians were "incompetent occupants of the soft." Their property was "disdained." He said they were savage tribes "whom it 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." (3)

It followed, then, for the Honorable Frederick Bausman, that a treaty with the Indians was a "dubious document." A treaty was "the announcement of our benevolence." Any fishing right "given" to them would be a short-term gratuity. Nothing "could be plainer," he wrote, than that "the numbers of white fishers, their advancing population, and their encroaching towns and mills would speedily render the reserved fishing spots worthless." (4)

The opinion in Towessnute caused great pain and spawned deep regrets. It was soon criticized by Washington Supreme Court Justice Kenneth Mackintosh, who condemned the court for its "ingenious reasons and excuses." (5) U.S. Attorney Francis Garrett said of the Towessnute judgment that "no court in this country has ever gone to the length of this opinion." (6) Towessnute was officially overruled and interred by the Washington Supreme Court in a 1957 case involving the Puyallup Indian, Robert Satiacum. (7)

Regrets over Towessnute linger. In March of 2005, Washington Supreme Court Chief Justice Gerry L. Alexander responded to a request by attorney Jack W. Fiander of Yakima to withdraw the court's opinion in the post-Towessnute 1927 Indian fishing case of State v. Wallahee. (8) Chief Justice Alexander wrote, "Replacing the withdrawn opinion with a new opinion would require the court to reconsider the merits of the case, which for such an old case would be problematic." (9) The Chief Justice added, "I regret that we are unable to accede to your request. We do, though, appreciate your views and those of Jim Wallahee's descendants and hope that the more recent decisions of this court and the United States Supreme Court that you cite in your letter will help to salve any wounds that may survive from the long ago conviction of Mr. Wallahee." (10)


This slow healing of the Towessnute wounds was rudely halted on March 9, 2005, by an en banc decision of the U.S. Court of Appeals for the Ninth Circuit in Skokoinish Indian Tribe v. United States, (11) popularly known as the Cushman Dam Decision. The tribe had sought $5 billion in damages to rectify one of the most environmentally destructive deeds in the history of western Washington. It was occasioned by the 1930 diversion of the entire North Fork of the Skokomish River out of the watershed. For seventy-five years, the tribe has endured destroyed fisheries, on-reservation flooding, backed-up septic tanks, destruction of orchards, and the silting over of fisheries and shellfish beaches. (12) A 1931 photo gives the picture that should be kept in mind:

Dewatered North Fork of the Skokomish River below Dam No.2 of the City of Tacoma's Cushman Hydroelectric Project. (13)

In a six to five majority opinion, (14) Judge Alex Kozinski ruled that the tribe and its individual members had no remedy for damages to rectify these longstanding wrongs. The United States could not be sued under either the Federal Tort Claims Act or the Federal Power Act. (15) Further the City of Tacoma and Tacoma Public Utilities could not be sued under the Treaty of Point No Point or the Civil Rights Act; (16) state law theories of trespass, nuisance, or inverse condemnation; (17) nor under the Federal Power Act. …