MUNGIA, J. (concurring)—I concur with the majority’s opinion.1
And yet I
dissent. Not from the majority’s opinion, but I dissent from the racism embedded in the
federal case law that applies to this dispute.
FEDERAL INDIAN LAW IS A PRODUCT OF THE RACIST BELIEFS ENDEMIC IN OUR SOCIETY
AND OUR LEGAL SYSTEM
While it is certainly necessary to follow federal case law on issues involving
Native American tribes and their members, at the same time it is important to call out that
the very foundations of those opinions were based on racism and white supremacy. By
doing this, readers of our opinions will have no doubt that the current court disavows, and
condemns, those racist sentiments, beliefs, and statements.
Since the founding of our country, the federal government has characterized
Native Americans as “savages”: They were “uncivilized.” They had little claim to the
land upon which they lived. At times, the federal government attempted to eradicate
Native Americans through genocidal policies. At other times, the federal government
employed ethnic cleansing by forcibly removing children from their parents’ homes to
strip them from their culture, their language, and their beings.2
Federal Indian case law arises from those racist underpinnings.
The majority correctly cites to Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8
L. Ed. 25 (1831), which is one of the foundational cases involving tribal sovereignty.
That opinion is rife with racist attitudes toward Native Americans. Chief Justice John
Marshall, writing for the majority, describes a tribe’s relationship to the federal
government as one of “ward to his guardian.” Id. at 17. In effect, the opinion presents
tribal members as children, and the federal government as the adult. That theme would
follow in later opinions by the United States Supreme Court—as would the theme of
white supremacy.
Cherokee Nation began with the premise that Native American tribes, once strong
and powerful, were no match for the white race and so found themselves “gradually
sinking beneath our superior policy, our arts and our arms.” Id. at 15. The white man
was considered the teacher, the Native Americans the pupils:
Meanwhile they are in a state of pupilage. Their relation to the United
States resembles that of a ward to his guardian.
Id. at 17.
This characterization of superior to inferior, teacher to student, guardian to ward,
was repeated in later United States Supreme Court opinions.
In Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S. Ct. 216, 47 L. Ed. 299 (1903),
often characterized as the “American Indian Dred Scott,”
3
the Court used that rationale to
justify ruling that the United States could break its treaties with Native American tribes.
These Indian tribes are the wards of the nation. They are communities
dependent on the United States. Dependent largely for their daily food.
Dependent for their political rights. . . . From their very weakness and
helplessness . . . there arises the duty of protection, and with it the power.
Id. at 567 (quoting United States v. Kagama, 118 U.S. 375, 383-84, 6 S. Ct. 1109, 30 L.
Ed. 228 (1886)).
Our court also carries the shame of denigrating Native Americans by using that
same characterization: “The Indian was a child, and a dangerous child, of nature, to be
both protected and restrained.” State v. Towessnute, 89 Wash. 478, 482, 154 P. 805
(1916), judgment vacated and opinion repudiated by 197 Wn.2d 574, 486 P.3d 111
(2020).
3 See A
Returning to Cherokee Nation, Justice William Johnson’s separate opinion was
less tempered in how he considered the various Native American tribes:
I cannot but think that there are strong reasons for doubting the
applicability of the epithet state, to a people so low in the grade of
organized society as our Indian tribes most generally are.
Cherokee Nation, 30 U.S. at 21. Native Americans were not to be treated as “equals to
equals” but, instead, the United States was the conqueror and Native Americans the
conquered. Id. at 23.
In discussing Native Americans, Justice Johnson employed another racist trope
used by judges both before and after him: Native Americans were uncivilized savages.
[W]e have extended to them the means and inducement to become
agricultural and civilized. . . . Independently of the general influence of
humanity, these people were restless, warlike, and signally cruel.
. . . .
But I think it very clear that the constitution neither speaks of them as states
or foreign states, but as just what they were, Indian tribes . . . which the law
of nations would regard as nothing more than wandering hordes, held
together only by ties of blood and habit, and having neither laws or
government, beyond what is required in a savage state.
Id. at 23, 27-28.
This same characterization was used by Justice Stanley Matthews in Ex parte KanGi-Shun-Ca (otherwise known as Crow Dog), 109 U.S. 556, 3 S. Ct. 396, 27 L. Ed. 1030
(1883). Justice Matthews described Native Americans as leading a savage life.
Washington Supreme Court Justice Mungia has an extraordinary opinion condemning "the underlying racism and prejudices that are woven into the very fabric" of SCOTUS opinions about Native people.
"We must clearly, loudly, and unequivocally state that was wrong.”
www.courts.wa.gov/opinions/pdf...
10.10.2025 17:29 — 👍 66 🔁 20 💬 2 📌 0
SCOTUS could still declare emergency tariffs illegal — which would be a fun cherry on this sundae. 🍨
10.10.2025 17:23 — 👍 137 🔁 32 💬 14 📌 0
It is now beyond debate that one of Donald Trump’s key goals is the creation of a national police force that is loyal to him alone. To that end, the president has repeatedly federalized the National Guard—often over governors’ objections—and deployed troops to invade blue cities whose residents oppose his administration. He has also transformed Immigration and Customs Enforcement into a kind of secret police that targets, with especially sadistic brutality, journalists, protesters, and others exercising their First Amendment rights. Trump’s multifaceted attack on the Constitution creates a feedback loop of lawlessness: He first erodes the structural limits on his authority, then exploits his newly unchecked power to trample the people’s freedom to dissent.
I think we need to be crystal clear about how Trump's creation of a nationwide police force—loyal only to him—threatens to create a feedback loop of lawlessness in which our constitutional right to dissent may vanish. slate.com/news-and-pol...
10.10.2025 17:25 — 👍 127 🔁 47 💬 2 📌 2
Sharia law in Idaho?
I'm sure that will go great.
#OpGOP
#Qatar
#Sharia
#MAGAcide
#MeMBu
10.10.2025 16:56 — 👍 4 🔁 1 💬 0 📌 0
Trump's handler.
10.10.2025 17:03 — 👍 2 🔁 0 💬 0 📌 0
Melania Trump: "President Putin and I have had an open channel of communication."
10.10.2025 16:59 — 👍 425 🔁 133 💬 296 📌 180
Trump official says federal layoffs 'have begun' amid government shutdown
Another of the Trump puppetmasters Russell Vought has been busy seizing the chaos of the government shutdown to advance the Project 2025 agenda.
The sacking of federal workers now has its own acronym - RIF. Reductions in Force.
10.10.2025 16:49 — 👍 83 🔁 45 💬 17 📌 3
Cometh the hour, croaketh the hero.
10.10.2025 16:50 — 👍 22 🔁 8 💬 0 📌 0
As of October 2025, Semion Mogilevich (79 yrs old) is believed to be alive and living freely in Moscow, Russia.
In April 2022, the FBI and Department of State announced a reward of up to $5 million for information leading to his arrest or conviction. #Mogilevich
www.state.gov/semion-mogil...
10.10.2025 16:51 — 👍 5 🔁 3 💬 3 📌 0
Russ Vought
@russvought
The RIFs have begun.
The Court hereby ORDERS defendants to file a response to the motion for a TRO no later than October 10, 2025, at 3:00 p.m. PDT. In their response, defendants SHALL address: (1) the status of any currently planned or in-progress RIF notices to be issued during/because of the government shutdown, including the earliest date that those RIF notices will go out; (2) which of the defendant agencies anticipate issuing RIF notices during/because of the government shutdown and the estimated number of employees at the defendant agency who will receive such RIF notices; and (3) whether any employees at the defendant agencies have been ordered back to work during the government shutdown in order to effectuate the issuance of RIF notices. Defendants shall provide evidence (declarations, exhibits, etc.) in support of the above information.
OMB head Russ Vought says RIFs have begun. In litigation challenging OMB's ability to RIF during a shutdown, OMB must provide more details by 3pm PT/ 6pm ET.
storage.courtlistener.com/recap/gov.us...
10.10.2025 16:53 — 👍 53 🔁 34 💬 0 📌 2
DHS top lawyer says 'no legal barrier' to actions officers can take to defend federal property
In a memo obtained exclusively by The Handbasket, Federal Protective Service (FPS) officers were given free rein.
EXCLUSIVE — DHS Acting General Counsel sent out a memo Wednesday to all Federal Protective Service staff (the sub-agency that guards federal buildings) letting officers know they could take any action necessary "in the vicinity" federal property to protect themselves.
The Handbasket reports:
10.10.2025 16:54 — 👍 519 🔁 291 💬 32 📌 56
Live Updates: María Corina Machado of Venezuela Is Awarded the Nobel Peace Prize
Congratulations to new Nobel Peace Prize laureate María Corina Machado for her courageous struggle to bring democracy to Venezuela.
10.10.2025 16:40 — 👍 5939 🔁 1497 💬 200 📌 132
Courts & Litigation Criminal Justice & the Rule of Law
Executive Branch
The Justice Department's
Dangerously Weak Case Against
Letitia James
Molly Roberts
Friday, October 10, 2025, 12:20 PM
Share On: f X in
%
凸
Lindsey Halligan didn't have a strong case against Letitia James. She indicted her anyway.
NEW: “The Justice Department seemed poised to pursue an indictment against Letitia James on pathetically weak charges. Yet the charges that actually ended up in the indictment a jury returned on Thursday may somehow be even weaker.”
By @mollyroberts.bsky.social
www.lawfaremedia.org/article/the-...
10.10.2025 16:44 — 👍 431 🔁 122 💬 15 📌 2
Rep. Buddy Carter - "Our big strong brave boy tried real hard and needs a participation trophy."
10.10.2025 16:18 — 👍 47 🔁 8 💬 6 📌 1
This is the guy they should arrest for incitement of violence.
10.10.2025 16:34 — 👍 29 🔁 10 💬 0 📌 0
“Unconstitutional”: Two GOP Governors Slam Trump’s Troop Deployments
Republican governors are finally calling out Donald Trump for using the National Guard to take over American cities.
Two GOP governors — Vermont’s Phil Scott and Oklahoma’s Kevin Stitt — just slammed Trump’s troop deployment as unconstitutional. Even Republican governors are finally calling him out for using the National Guard to take over American cities.
newrepublic.com/post/201610/...
10.10.2025 15:34 — 👍 469 🔁 177 💬 32 📌 12
PaloAltoLegalCA9101025
JUST IN: 9th Circuit denies Trump admin request for en banc rehearing in case over legal services for children in deportation proceedings. 9 (of 29) judges join a Bumatay/VanDyke dissent. Fight over whether suit belongs at Court of Claims. Doc:
www.documentcloud.org/documents/26...
10.10.2025 16:37 — 👍 32 🔁 9 💬 1 📌 0
The No Kings protests have been some of the most peaceful and well attended political assemblies in American history. In fact, MAGA has mocked them as a bunch of boomer grandmothers. Now they are apparently terrorists. bsky.app/profile/atru...
10.10.2025 15:34 — 👍 1208 🔁 363 💬 145 📌 22
Not only had Bolton’s book been cleared for publication, but the Trump administration acted in bad faith to try and suppress its release.
10.10.2025 16:38 — 👍 15 🔁 3 💬 0 📌 0
“De-levering” the public sector (but the deficit is worse, not better.)
“Re-levering” the private sector (but now slamming it with more tariff uncertainty.) 🤡
10.10.2025 16:36 — 👍 103 🔁 12 💬 4 📌 2
#NoKings
10.10.2025 16:28 — 👍 2 🔁 0 💬 0 📌 0
Mike Johnson: "This hate America rally that they have coming up for October 18? The antifa crowd, the pro-Hamas crowd, and the Marxists, they're all gonna gather on the Mall. It is an outrageous gathering for outrageous purposes ... all this has gotta come to an end."
10.10.2025 16:25 — 👍 628 🔁 175 💬 458 📌 211
Clown show.
10.10.2025 16:17 — 👍 82 🔁 13 💬 4 📌 0
Oh no!
10.10.2025 16:21 — 👍 2 🔁 0 💬 0 📌 0
A massive explosion has destroyed the Accurate Energetic Systems facility in Bucksnort, Tennesse. It produced explosives and equipment for military, defence, aerospace, demolition, mining and oil industries.
19 people unaccounted.
10.10.2025 16:20 — 👍 128 🔁 69 💬 24 📌 15
This is a big deal.
10.10.2025 16:04 — 👍 689 🔁 329 💬 53 📌 18
Historian @ruhistorydept.bsky.social
MSNBC Senior Political and National Correspondent. Author of Firestorm (2026) and Separated (2020). Executive Producer of Separated, a film by Errol Morris.
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