Late last year, Raquel Montoya-Lewis was nominated to the state of Washington’s Supreme Court, filling the seat vacated by the retiring Mary Fairhurst. Montoya-Lewis grew up with Jewish and Native American backgrounds from her mother and father, respectively, and is only the second Native American to ever sit on any state supreme court, and the first enrolled tribal member to do so. Benjamin Jancewicz sat down to interview her for the Tribe Herald.
Benjamin Jancewicz for Tribe Herald: Thanks so much for taking the time to meet with me! It’s very nice to meet you. I’ve been doing tons of research about you and it’s really cool to see your work and to learn a little bit more about it.
Raquel Montoya-Lewis: Well, thank you. It’s an interesting experience to be someone people research!
TH: I got that from some of your previous interviews that it’s been rather kind of a shock. I believe you said you were originally going to be a professor, right?
RML: That was my original plan, yes, and I did do that, but it was certainly my goal as a college student.
TH: How do you feel the education that you had as a professor brought you insight to where you are now?
RML: I think that one of the best parts of being a professor was that it continually reminded me that a lot of the things that I took for granted, or things that seemed like something everyone could easily understand, were sometimes very difficult to understand for others.
Because I had been exposed to education for years and years, it really taught me how to explain complex questions in clear terms that people could engage in. That has really translated to my work in the courtroom.
It was very important to me as a trial court judge that people understood why I was doing what I was doing, and what the law required. That translates into this new job [as a Supreme Court Justice] as well because so much of our work is written. Our job is to really explain and clarify the law.
In my experience in law school, everything I was reading was in English, but it was as if it was a foreign language. I just did not understand everything that I was reading for months and months. It doesn’t have to be that way. I think it looks like we have created an exclusionary practice of the law. And I don’t think that that’s necessary.
[Being a tribal judge] forced me to be a much better translator of the law. I think that much of what judges do, if they’re doing it well, is translating.
TH: To have someone explain law clearly and plainly is really really a talent. Can you tell me more about your experience as a tribal judge? On the reservation I grew up on, we would often have judges come to the tribe about once a year because we were so remote. What was your experience like? Did anything about your work there inform what you’re doing in the Washington Supreme Court.
RML: I was a tribal judge for many different kinds of tribes. I started with my own tribe [Pueblo of Isleta], and at the time (which was 20 years ago) the court ran in a manner that was much more in keeping with the traditions of the tribe as opposed to looking like what a state court looks like. The court ran both in English and in the tribal language, Tiwa, and much of the law that I worked with was unwritten.
The written law was maybe 30 pages, and everything else which was law that was transmitted orally. We would have experts in the customary law of the tribe come in and testify if we had an issue that needed that information. This was where I started my work as a judge.
I also worked for other tribes. The Lummi nation has an extremely sophisticated and developed written law that they very much relied on. That was a very different approach to how their tribal court ran.
I’ve worked in courts and that was a full-time position with more than one judge and very active court docket every single day. I also worked for the Upper Skagit Indian tribe; they had court once a month in a small board room.
This very wide range of work I did with various tribes informs the work I do now. I’ve had the opportunity (and I think it’s a pretty rare experience) to be able to see how different communities develop their own systems of justice depending upon what their values and needs are.
I worked in the state court system as a trial court judge. I loved that work, but in many respects it was easier; as there was always an answer. I rarely had a case where nobody had ever thought about the question. There was always some resource. There were colleagues. There was always a way to sort through the problems in a case and that was wonderful… but the flip side, I was much more limited and what I could do in an individual case. I wasn’t as able to craft solutions that really got at the underlying problems because I was limited by The Rules of Evidence or other things. So at the Supreme Court; I don’t have one system in my mind about how justice can work.
Understanding that different communities view justice differently is incredibly valuable.
TH: I know that you’ve spoken a little bit about Native people being disproportionately represented in the criminal justice system. What do you think are the major ways in which justice can become more fair, especially for First Nations communities? What were some of the major obstacles to justice that you saw?
RML: The disproportionality issue impacts native communities. It also impacts all communities of color. Black communities are way over represented in the criminal justice system.
The vast majority of judges and other groups of people who interface with the legal system are absolutely willing to recognize that problem. They will say “we have a disproportionality issue with respect to Native people being far over-represented in the criminal justice system.” They will say it about the child welfare system. Or the juvenile offender system. They’ll acknowledge all of that.
The problem is that those same people are almost always unwilling to recognize that they have a part in that disproportionality. They will say “well, it’s an issue related to decision making at the arrest stage.”
So really it’s law enforcement? If you talk to law enforcement, they will say “well, we don’t make the decisions about who to prosecute. It’s a prosecutor’s office problem.”
And the prosecutor’s office will come in and say “Well, we don’t don’t make conviction decisions. That’s the judge or jury.” There’s this very remarkable reluctance of people to recognize that we all (and I include myself on this) have biases that impact our decision-making.
I recognize most of us want to think of ourselves as good people who have good intentions. We don’t want to believe that we make decisions that are based upon this mess that’s in our head that that is full of bias.
Teaching implicit bias to get through that hurdle is very difficult. I don’t think that’s the only reason why we have disproportionality, but I don’t think we can genuinely begin to address the disproportionality without willingness to have hard conversations internally.
I saw a prosecutor in a trial who, during jury selection, was asked a question by a juror about why the prosecutor was not asking the jury panel about their biases. The defendant was black and the entire jury panel and the lawyers were all white. When the juror asked that question, I really thought “oh, here’s an opportunity to talk about those things”. The prosecutor completely shut it down and said “well, I don’t care what his race is. It doesn’t matter to me and it shouldn’t matter to you.”
The juror actually pushed back on it more than once and. But both sides; the defendant’s attorney and the prosecutors attorney were absolutely unwilling to entertain the question. Probably because they were afraid it would sort of get out of hand, and they didn’t really have the skill to manage that complicated discussion.
I talked about this example with a group of 50 prosecutors I was teaching, and the response I got was “was that me? I hope it wasn’t me.”
It really worries me that as a community of judges, as a community in the justice system, or even as a society, how unwilling we are to investigate those questions.
The larger institutional problem is that so much of our Criminal Justice System is based on “the way we’ve always done things”. Within that is all these assumptions about what’s important and what our values are.
We sentence people who are convicted of drug crimes. When you compare those sentences to other crimes that involve violence against a person, it demonstrates that we believe that one is worse than the other. That’s a value system.
When you ask whether we should believe that drugs are worse than crimes against a person, most people will say no. But if you then say “well our laws seem to indicate otherwise”, that conversation gets shut down.
TH: In your work as a tribal judge, did you have any kinds of questions on tribal sovereignty? Do you interact with tribes on this level that you’re at now?
RML: As a tribal court judge, I had those issues. They weren’t the bread-and-butter of what I did by any stretch, but when people sued the tribe, or other entities to the tribes, that question always came up. Tribes are very frequently raising sovereign immunity as a complete defense to suits. Tribes raise the issue in order to continue to protect their sovereignty, which is constantly under attack. I dealt with that issue in various forms with a number of tribes that I worked for.
As a Supreme Court Justice, the court has the Tribal State Consortium, where tribal judges and state judges come together to talk about common issues and how to improve communication. It was my experience as a tribal court judge that I almost never got communication, I never had communication from State Court judges.
I had a case at the Lummi tribe that was a property dispute. It was a complicated situation, but the case could have been filed either in tribal court or state court, both courts would have been appropriate. One party sued in tribal court, the other party sued in state court. It got to trial in front of me before it got to trial in front of the state court judge, and I called the assigned judge in the County Superior Court and said “We have this same case; perhaps there’s a way we can resolve it together.”
He never called me back. The case then went to trial. I wrote a very lengthy decision in the case, resolved all the issues the prevailing party had brought, they took it into Superior Court and said “this case has been decided. It’s been litigated and decided this is the decision.” I also called the judge to tell him the same.
He still didn’t return my call. He actually had the parties go through a complete new trial. The parties had to pay for two trials only for him to arrive at the exact same conclusion that I did. I only found out because one of the attorneys brought it to me. That judge never communicated with me, never reached out..
It was just an absurd situation. I’ve told that story in a number of contexts, because I never really understood why that judge didn’t reach out to me. It was bizarre to me. That story is not unique to me. I hear tribal court judges tell those stories all the time in Washington. We actually have a rule that requires communication when there are common issues. It is remarkable to me how rare that communication is.
TH: I know representation in politics and in the public sphere is almost never easy. How do you feel about becoming a representative of both your Jewish and First Nation communities?
RML: It’s a very strange position to be in. I was very hesitant about applying for this opening when it became available and Chief Justice Fairhurst announced her retirement. A number of people reached out to me and asked me to consider applying; but I was pretty reticent. Partly because of the public nature of the position.
I was also worried about whether I could win an election and retain the seat because there has only been one other woman of color to win a Statewide office in the state of Washington.
One of my trusted advisors, a Native person, said “You may not get the position, but it’s critical you apply because you really are the only person right now positioned to be seriously considered. We have to be visible and in the running for these kinds of things. No one will ever see us as viable otherwise.” That really that really struck a chord with me. It was one of the reasons I chose to apply.
Right before the announcement that I got the position was made, someone said that I had to put my helmet on because it was going to be like being shot out of a cannon. They were right.
For both the Native and the Jewish communities to see this representation has been important. I’ve gotten letters from people all over the world, I’ve gotten visits from kids to the Supreme Court, and you can just see in their eyes how much it means to them to see someone that they can relate to on that bench.
Having it be so meaningful to people makes it a lot easier for me to be in the position; because I don’t necessarily feel it as pressure, I see the benefit. For me to be in that position and to have people see themselves differently, that’s what makes it worth it.
As I was growing up, my father always said I had to do at least twice the amount of work in order to get the same recognition that non-native, non-Jewish person would get. That has certainly proved to be true.
TH: I had read that you had connected with your Native traditions later in life. How had you had you connected with your Jewish traditions earlier from your mother’s side?
RML: On both sides, I didn’t really understand we were different until I started interacting with other people who would tell me we weren’t normal. My mother was very much culturally Jewish, but we were not practicing in any religious way. Many of those values and traditions were things that I was raised with that were not necessarily connected to a particular Temple.
Many traditions are common between Native communities and Jewish communities, such as celebrations involving food, foods having particular meanings, and the importance of gathering as communities and families and preserving those conditions over time.
Even when those traditions have been under attack for thousands of years, these things are very common between both communities.
TH: Coming from two cultures of survivors; ancestors of both sides who really survived incredible odds, what was the dialogue of race and religion like in your home growing up? Did your parents always see eye-to-eye?
RML: My dad, in his career in the Air Force, was often the only Native person in the room. That was largely my experience as well, because I was going to Department of Defense schools. He had a pretty consistent experience with various forms of racism in his work and my mother, who’s white, never had that experience with the exception of early on in my life.
We lived in South Carolina for a period of time, and they got a lot of flack, from disparaging comments to the threats of violence for being an interracial couple. But that was her entire experience with racism.
It was kind of like living in two different worlds: the world of what my mother hoped it was, and the world that I was actually in. That tension was present throughout my childhood. It was extraordinarily confusing. I would have these [racist] experiences, or my father would talk about his experiences, and then it would be explained away as a misunderstanding.
[Racism] couldn’t be happening, because it was too painful to think about someone you care about being judged in that way or experiencing violence as a result of those things. And so it has to be something else.
It was very difficult growing up with this, but on the other hand, it has given me some insight. When I am teaching on bias and racism, I can recognize when people want to deny those experiences. I used to take it very personally, but now I recognize it’s not so much about me as it is about it being difficult to imagine that that is what the world is.
My husband is white and he sees it immediately now, but it took him years to really understand what was happening to people of color and his wife. Before that, it was often “Well, that’s not the experience I had.”
I do have some empathy for where my mother was coming from, but it was deeply confusing to grow up with that tension.
TH: Becoming more involved in tribal communities and more in your father’s tribe, were there any traditions and values that you now hold dear that you learned from that experience?
RML: My father had this almost geologic understanding of time. He would describe these stories from his grandmother. They were very painful stories. But he would always find something humorous in them and say “You know, it will all come around.”
What he meant by that things would change. Not like in their lifetime, or his lifetime, or mine. But they would.
He really would look at time in this way. This was true for so many people in my tribe in my communities in Pueblo of Isleta and Pueblo of Laguna. These tribes hadn’t been moved around, so they’ve been there for thousands of years.
In Northern New Mexico, the Taos Pueblo is the longest inhabited Village in North America, and its people have been living there forever. And that’s the sense that I have. We’ve been here forever. We’re going to be here forever. Things will get solved over time. I found that very frustrating as a young person, that my dad would have had this geologic view of time.
He had this sort of patience and confidence that came from that sense of time. He also had this deep understanding in his bones that he was there, and I was there, because people survived and people persisted. That’s also reflected on my Jewish side.
He had this ability to recognize that draw strength from that history and not take everything too seriously. But I, an idealistic 19 year old, was like, “we have to solve these things immediately!” He would just say “well, it’ll come around.” Now, I’ve come around to that idea, and it drives my 18 year old son crazy. [laughs]
TH: That is truly beautiful. I only have one very last question; I want to open up the floor. Is there anything that’s happening at the state level or national level that you think deserves more attention and a wider stage?
RML: The work that we do as a country on child welfare is really a forgotten issue. Unless you’re involved in working with families who are involved in the child welfare system, you don’t really think about it. It touches so many communities and families and I think we have a very dismissive view of families that get involved with child protective services.
There’s an idea that these families are bad, or the parents are bad, but it’s been my experience that those families are just the families who for whatever reason get picked up by the system. The issues they’re facing are issues that many families face.
We have historically had the approach that kids are better off with families who are more capable of dealing with stress. I have never had a child, in my 20 years of work in that field, say anything to me other than “I want to be with my biological parents”.
They may understand that they can’t. I’ve certainly had kids say “I understand my mom is too sick” or “My dad needs help and it’s not safe for me to be there. But I hope that they can fix it so that I can go home”.
That’s not to say that adoption is a bad thing, because one of the best parts of my job was to celebrate adoptions and formalize adoptions. Those were wonderful amazing days.
But I think that we don’t have a good national public conversation about family reunification and ensuring that families have the support and parents have the support and training. They need to be good parents, and there are things we can do as a legal system to help.
TH: Thank you very much. This was really fantastic.
RML: I really appreciate the opportunity and time to talk to you!
