Treaty rights/convictions

AN ACT Relating to vacating convictions involving the exercise of 1
treaty rights by Indian tribal members; amending RCW 9.96.060, 2
2.70.020, and 2.70.023; adding a new section to chapter 2.70 RCW; and 3
creating a new section. 4
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:5
NEW SECTION. Sec. 1. The legislature finds that during the 6
period of North America settlement in the 18th and 19th centuries, 7
the United States federal government signed treaties with many of the 8
Indian tribal nations living on the lands that would eventually 9
become the state of Washington.10
The legislature further finds that although such treaties often 11
included promises to the Indian tribal nations to reserve a portion 12
of ceded land for the exclusive use and benefit of the tribes, these 13
promises have not always been kept. 14
The legislature further finds that in order to accomplish the 15
purposes and objectives outlined by the Centennial Accord between the 16
state of Washington and the federally recognized Indian tribes whose 17
traditional lands and territories included parts of Washington, the 18
state must make an unwavering commitment to address past and ongoing 19
injustices against the federally recognized Indian tribes and their 20
members. 21
H-0981.1
HOUSE BILL 1982
State of Washington 69th Legislature 2025 Regular Session
By Representatives Lekanoff, Parshley, and Pollet
Read first time 02/14/25. Referred to Committee on Community Safety.
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The legislature therefore intends to expand provisions of state 1
law to vacate the records of conviction of Indian tribal members who 2
were convicted of offenses related to the exercise of treaty Indian 3
fishing, hunting, gathering, or pasturing rights. 4
The legislature further intends to spread awareness and 5
information about the process for vacating applicable convictions; 6
fund direct representation and consultation services for individuals 7
seeking to vacate applicable convictions; and promote better 8
relationships between the state and Indian tribal governments.9
Sec. 2. RCW 9.96.060 and 2024 c 296 s 1 are each amended to read 10
as follows: 11
(1) When vacating a conviction under this section, the court 12
effectuates the vacation by: (a)(i) Permitting the applicant to 13
withdraw the applicant's plea of guilty and to enter a plea of not 14
guilty; or (ii) if the applicant has been convicted after a plea of 15
not guilty, the court setting aside the verdict of guilty; and (b) 16
the court dismissing the information, indictment, complaint, or 17
citation against the applicant and vacating the judgment and 18
sentence. 19
(2) Every person convicted of a misdemeanor or gross misdemeanor 20
offense may apply to the sentencing court for a vacation of the 21
applicant's record of conviction for the offense. If the court finds 22
the applicant meets the requirements of this subsection, the court 23
may in its discretion vacate the record of conviction. Except as 24
provided in subsections (3), (4), (5), and (6) of this section, an 25
applicant may not have the record of conviction for a misdemeanor or 26
gross misdemeanor offense vacated if any one of the following is 27
present: 28
(a) The applicant has not completed all of the terms of the 29
sentence for the offense, including satisfaction of financial 30
obligations; 31
(b) There are any criminal charges against the applicant pending 32
in any court of this state or another state, or in any federal or 33
tribal court, at the time of application; 34
(c) The offense was a violent offense as defined in RCW 9.94A.030 35
or an attempt to commit a violent offense; 36
(d) The offense was a violation of RCW 46.61.502 (driving while 37
under the influence), 46.61.504 (actual physical control while under 38
the influence), 9.91.020 (operating a railroad, etc. while 39
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intoxicated), or the offense is considered a "prior offense" under 1
RCW 46.61.5055 and the applicant has had a subsequent alcohol or drug 2
violation within 10 years of the date of arrest for the prior offense 3
or less than 10 years has elapsed since the date of the arrest for 4
the prior offense; 5
(e) The offense was any misdemeanor or gross misdemeanor 6
violation, including attempt, of chapter 9.68 RCW (obscenity and 7
pornography), chapter 9.68A RCW (sexual exploitation of children), or 8
chapter 9A.44 RCW (sex offenses), except for failure to register as a 9
sex offender under RCW 9A.44.132; 10
(f) The applicant was convicted of a misdemeanor or gross 11
misdemeanor offense as defined in RCW 10.99.020, or the court 12
determines after a review of the court file that the offense was 13
committed by one family or household member against another or by one 14
intimate partner against another, or the court, after considering the 15
damage to person or property that resulted in the conviction, any 16
prior convictions for crimes defined in RCW 10.99.020, or for 17
comparable offenses in another state or in federal court, and the 18
totality of the records under review by the court regarding the 19
conviction being considered for vacation, determines that the offense 20
involved domestic violence, and any one of the following factors 21
exist: 22
(i) The applicant has not provided written notification of the 23
vacation petition to the prosecuting attorney's office that 24
prosecuted the offense for which vacation is sought, or has not 25
provided that notification to the court; 26
(ii) The applicant has two or more domestic violence convictions 27
stemming from different incidents. For purposes of this subsection, 28
however, if the current application is for more than one conviction 29
that arose out of a single incident, none of those convictions counts 30
as a previous conviction; 31
(iii) The applicant has signed an affidavit under penalty of 32
perjury affirming that the applicant has not previously had a 33
conviction for a domestic violence offense, and a criminal history 34
check reveals that the applicant has had such a conviction; or35
(iv) Less than five years have elapsed since the person completed 36
the terms of the original conditions of the sentence, including 37
successful completion of any treatment ordered as a condition of 38
sentencing, but excluding the payment of financial obligations;39
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(g) For any offense other than those described in (f) of this 1
subsection, less than three years have passed since the later of the 2
applicant's release from supervision or probation; the applicant's 3
release from total and partial confinement, as defined in RCW 4
9.94A.030; or the applicant's sentencing date; 5
(h) The offender has been convicted of a new crime in this state, 6
another state, or federal or tribal court in the three years prior to 7
the vacation application; or 8
(i) The applicant is currently restrained by a domestic violence 9
protection order, a no-contact order, an antiharassment order, or a 10
civil restraining order which restrains one party from contacting the 11
other party or was previously restrained by such an order and was 12
found to have committed one or more violations of the order in the 13
five years prior to the vacation application. 14
(3) If the applicant is a victim of sex trafficking, 15
prostitution, or commercial sexual abuse of a minor; sexual assault; 16
or domestic violence as defined in RCW 9.94A.030, or the prosecutor 17
applies on behalf of the state, the sentencing court may vacate the 18
record of conviction if the application satisfies the requirements of 19
RCW 9.96.080. When preparing or filing the petition, the prosecutor 20
is not deemed to be providing legal advice or legal assistance on 21
behalf of the victim, but is fulfilling an administrative function on 22
behalf of the state in order to further their responsibility to seek 23
to reform and improve the administration of criminal justice. A 24
record of conviction vacated using the process in RCW 9.96.080 is 25
subject to subsections (7) and (8) of this section.26
(4) Every person convicted ((prior to January 1, 1975, )) of 27
violating any statute, ordinance, or rule regarding the regulation of 28
fishing, hunting, gathering, or pasturing activities, including, but 29
not limited to, (([former])) former RCW 75.08.260, 75.12.060, 30
75.12.070, 75.12.160, 77.16.020, 77.16.030, 77.16.040, 77.16.060, and 31
77.16.240 who claimed to be exercising a treaty Indian fishing , 32
hunting, gathering, or pasturing right, may apply to the sentencing 33
court for vacation of the applicant's record of the misdemeanor, 34
gross misdemeanor, or felony conviction for the offense. If the 35
person is deceased, a member of the person's family or an official 36
representative of the tribe of which the person was a member may 37
apply to the court on behalf of the deceased person. Notwithstanding 38
the requirements of RCW 9.94A.640, the court shall vacate the record 39
of conviction if: 40
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(a) The applicant is a member of a tribe that may exercise treaty 1
Indian fishing , hunting, gathering, or pasturing rights at the 2
location where the offense occurred; and 3
(b) The state or local government has been enjoined from taking 4
enforcement action of the statute , ordinance, or rule to the extent 5
that it interferes with a treaty Indian fishing , hunting, gathering, 6
or pasturing right as determined under United States v. Washington , 7
384 F. Supp. 312 (W.D. Wash. 1974), or Sohappy v. Smith, 302 F. Supp. 8
899 (D. Oregon 1969), or State v. Wallahee , 3 Wn.3d 179 (2024), and 9
any posttrial orders of those courts, or any other state supreme 10
court or federal court decision. 11
(5) Every person convicted of a misdemeanor cannabis offense, who 12
was 21 years of age or older at the time of the offense, may apply to 13
the sentencing court for a vacation of the applicant's record of 14
conviction for the offense. A misdemeanor cannabis offense includes, 15
but is not limited to: Any offense under RCW 69.50.4014, from July 1, 16
2004, onward, and its predecessor statutes, including RCW 17
69.50.401(e), from March 21, 1979, to July 1, 2004, and RCW 18
69.50.401(d), from May 21, 1971, to March 21, 1979, and any offense 19
under an equivalent municipal ordinance. If an applicant qualifies 20
under this subsection, the court shall vacate the record of 21
conviction. 22
(6) If a person convicted of violating RCW 69.50.4011(1) (b) or 23
(c), 69.50.4013, 69.50.4014, or 69.41.030(2) (b) or (c) completes a 24
substance use disorder program and files proof of completion with the 25
court, or obtains an assessment from a recovery navigator program 26
established under RCW 71.24.115, an arrest and jail alternative 27
program established under RCW 36.28A.450, or a law enforcement 28
assisted diversion program established under RCW 71.24.589, and has 29
six months of substantial compliance with recommended treatment or 30
services and progress toward recovery goals as reflected by a written 31
status update, upon verification the court must vacate the conviction 32
or convictions. 33
(7) A person who is a family member of a homicide victim may 34
apply to the sentencing court on the behalf of the victim for 35
vacation of the victim's record of conviction for prostitution under 36
RCW 9A.88.030. If an applicant qualifies under this subsection, the 37
court shall vacate the victim's record of conviction.38
(8)(a) Except as provided in (c) of this subsection, once the 39
court vacates a record of conviction under this section, the person 40
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shall be released from all penalties and disabilities resulting from 1
the offense and the fact that the person has been convicted of the 2
offense shall not be included in the person's criminal history for 3
purposes of determining a sentence in any subsequent conviction. For 4
all purposes, including responding to questions on employment or 5
housing applications, a person whose conviction has been vacated 6
under this section may state that he or she has never been convicted 7
of that crime. However, nothing in this section affects the 8
requirements for restoring a right to possess a firearm under RCW 9
9.41.041. Except as provided in (b) of this subsection, nothing in 10
this section affects or prevents the use of an offender's prior 11
conviction in a later criminal prosecution. 12
(b) When a court vacates a record of domestic violence as defined 13
in RCW 10.99.020 under this section, the state may not use the 14
vacated conviction in a later criminal prosecution unless the 15
conviction was for: (i) Violating the provisions of a restraining 16
order, no-contact order, or protection order restraining or enjoining 17
the person or restraining the person from going on to the grounds of 18
or entering a residence, workplace, school, or day care, or 19
prohibiting the person from knowingly coming within, or knowingly 20
remaining within, a specified distance of a location, a protected 21
party's person, or a protected party's vehicle (RCW 10.99.040, 22
10.99.050, 26.09.300, 26.26B.050, 26.44.063, 26.44.150, or 26.52.070, 23
or any of the former RCW 26.50.060, 26.50.070, 26.50.130, and 24
74.34.145); (ii) stalking (RCW 9A.46.110); or (iii) a domestic 25
violence protection order or vulnerable adult protection order 26
entered under chapter 7.105 RCW. A vacated conviction under this 27
section is not considered a conviction of such an offense for the 28
purposes of 27 C.F.R. 478.11. 29
(c) A conviction vacated on or after July 28, 2019, qualifies as 30
a prior conviction for the purpose of charging a present recidivist 31
offense as defined in RCW 9.94A.030 occurring on or after July 28, 32
2019. 33
(9) The clerk of the court in which the vacation order is entered 34
shall immediately transmit the order vacating the conviction to the 35
Washington state patrol identification section and to the local 36
police agency, if any, which holds criminal history information for 37
the person who is the subject of the conviction. The Washington state 38
patrol and any such local police agency shall immediately update 39
their records to reflect the vacation of the conviction, and shall 40
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transmit the order vacating the conviction to the federal bureau of 1
investigation. A conviction that has been vacated under this section 2
may not be disseminated or disclosed by the state patrol or local law 3
enforcement agency to any person, except other criminal justice 4
enforcement agencies. 5
(10) For the purposes of this section, "cannabis" has the meaning 6
provided in RCW 69.50.101. 7
NEW SECTION. Sec. 3. A new section is added to chapter 2.70 RCW 8
to read as follows: 9
Subject to the availability of amounts appropriated for this 10
specific purpose, the office of public defense shall establish a 11
position for a staff tribal liaison counsel. The staff tribal liaison 12
counsel's responsibilities shall include: 13
(1) Performing outreach to tribal governments to identify and 14
support tribal members with convictions related to the regulation of 15
fishing, hunting, gathering, or pasturing activities that may be 16
eligible for vacation pursuant to RCW 9.96.060(4);17
(2) Developing and disseminating educational material and 18
information to tribal governments and their members about the process 19
for vacating applicable convictions pursuant to RCW 9.96.060(4), and 20
the services that affected tribal members may be eligible to receive 21
from the office of public defense; and 22
(3) Providing direct representation and consultation services to 23
individuals seeking to vacate applicable convictions pursuant to RCW 24
9.96.060(4), including by filing motions to vacate and appearing at 25
related legal proceedings. 26
Sec. 4. RCW 2.70.020 and 2024 c 294 s 1 are each amended to read 27
as follows: 28
The director shall: 29
(1) Administer all state-funded services in the following program 30
areas: 31
(a) Trial court criminal indigent defense, as provided in chapter 32
10.101 RCW; 33
(b) Appellate indigent defense, as provided in this chapter and 34
RCW 10.73.150; 35
(c) Representation of indigent parents qualified for appointed 36
counsel in dependency and termination cases, as provided in RCW 37
13.34.090 and 13.34.092; 38
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(d) Extraordinary criminal justice cost petitions, as provided in 1
RCW 43.330.190; 2
(e) Compilation of copies of DNA test requests by persons 3
convicted of felonies, as provided in RCW 10.73.170;4
(f) Representation of indigent respondents qualified for 5
appointed counsel in sexually violent predator civil commitment 6
cases, as provided in chapter 71.09 RCW; and 7
(g) Representation of indigent persons who are acquitted by 8
reason of insanity and committed to state psychiatric care as 9
provided in chapter 10.77 RCW; 10
(2) Subject to availability of funds appropriated for this 11
specific purpose, provide access to counsel for indigent persons 12
incarcerated in a juvenile rehabilitation or adult correctional 13
facility to file and prosecute a first, timely personal restraint 14
petition under RCW 10.73.150. The office shall establish eligibility 15
criteria that prioritize access to counsel for youth under age 25, 16
youth or adults with sentences in excess of 120 months, youth or 17
adults with disabilities, and youth or adults with limited English 18
proficiency. Nothing in this subsection creates an entitlement to 19
counsel at state expense to file a personal restraint petition;20
(3) Subject to the availability of funds appropriated for this 21
specific purpose, appoint counsel to petition the sentencing court if 22
the legislature creates an ability to petition the sentencing court, 23
or appoint counsel to challenge a conviction or sentence if a final 24
decision of an appellate court creates the ability to challenge a 25
conviction or sentence. Nothing in this subsection creates an 26
entitlement to counsel at state expense to petition the sentencing 27
court; 28
(4) Provide access to attorneys for juveniles contacted by a law 29
enforcement officer for whom a legal consultation is required under 30
RCW 13.40.740; 31
(5) Submit a biennial budget for all costs related to the 32
office's program areas; 33
(6) Establish administrative procedures, standards, and 34
guidelines for the office's program areas, including cost-efficient 35
systems that provide for authorized recovery of costs;36
(7) Provide oversight and technical assistance to ensure the 37
effective and efficient delivery of services in the office's program 38
areas; 39
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(8) Recommend criteria and standards for determining and 1
verifying indigency. In recommending criteria for determining 2
indigency, the director shall compile and review the indigency 3
standards used by other state agencies and shall periodically submit 4
the compilation and report to the legislature on the appropriateness 5
and consistency of such standards; 6
(9) Collect information regarding indigent defense services 7
funded by the state and report annually to the advisory committee, 8
the legislature, and the supreme court; 9
(10) Coordinate with the supreme court and the judges of each 10
division of the court of appeals to determine how appellate attorney 11
services should be provided;12
(11) Subject to the availability of funds appropriated for this 13
specific purpose, provide access to direct representation and 14
consultation services to individuals eligible to vacate convictions 15
pursuant to RCW 9.96.060(4). 16
Sec. 5. RCW 2.70.023 and 2024 c 294 s 2 are each amended to read 17
as follows: 18
(1) Except as otherwise provided in this section, the office of 19
public defense shall not provide direct representation of clients.20
(2) In order to protect and preserve client rights when 21
administering the office's statutory duties to provide initial 22
telephonic or video consultation services, managing and supervising 23
attorneys of the office of public defense who meet applicable public 24
defense qualifications may provide limited short-term coverage for 25
the consultation services if office of public defense contracted 26
counsel is unavailable to provide the consultation services. The 27
office shall provide services in a manner consistent with the rules 28
of professional conduct, chapter 42.52 RCW, and applicable policies 29
of the office of public defense. 30
(3) The office of public defense may facilitate and supervise 31
placement of law clerks, externs, and interns with office of public 32
defense contracted counsel, in a manner consistent with the 33
Washington admission and practice rules, the rules of professional 34
conduct, chapter 42.52 RCW, and applicable policies of the office of 35
public defense. 36
(4) Employees of the office of public defense may provide pro 37
bono legal services in a manner consistent with the rules of 38
professional conduct, chapter 42.52 RCW, and applicable policies of 39
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the office of public defense. The policies of the office of public 1
defense must require that employees providing pro bono legal services 2
obtain and provide to the office a written statement, signed by any 3
pro bono client, acknowledging that: 4
(a) The pro bono legal services are provided by the employee 5
acting in the employee's personal capacity and not as an employee of 6
the office of public defense; and 7
(b) The state of Washington may not be held liable for any claim 8
arising from the provision of pro bono legal services by the 9
employees of the office of public defense. 10
The office of public defense shall retain the written statements 11
in a manner consistent with records relating to potential conflicts 12
of interest. 13
(5) Employees of the office of public defense may provide direct 14
representation and consultation services to individuals, or, where an 15
individual is deceased, a family member or an official tribal 16
representative acting on behalf of the individual, for purposes of 17
filing motions to vacate convictions pursuant to RCW 9.96.060(4) and 18
appearing at related legal proceedings, in a manner consistent with 19
Washington admission and practice rules, the rules of professional 20
conduct, chapter 42.52 RCW, and applicable policies of the office of 21
public defense.22
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