WSBA Should Test Indian Law on the Bar Exam

By Gabriel S. Galanda

In late February, another 500 citizens will endeavor to transition through our legal community’s rite of passage-the state bar examination. The Washington State Bar Association, through authority delegated by the State Supreme Court, conducts the test bi-annually.

Aspiring lawyers must past the exam, which tests, or threatens to test, 24 substantive areas of law. Bar takers must stand prepared to analyze principles fundamental to the Anglo-American legal system, like business law, family law, real property, torts, and state and federal constitutional law. Such subjects are tested by the WSBA to ensure that each and every attorney who will protect the essential legal rights of Washington citizens, is competent to do so.

However, there is an age-old, ever-evolving and increasingly prevalent body of law that is not tested by the WSBA. The roots of these laws were planted throughout the Northwest long, long before Meriwether Lewis and William Clark discovered southern Washington in 1806. This code of law was so obviously prevalent in colonial America that the founding fathers wrote the framework for the law into the plain text of the U.S. Constitution. Although inextricably interwoven into the fabric of our state and federal legal systems, this area of law is not contained in our state’s bar exam.

The State of New Mexico recently became the first state to test this legal subject on its bar exam, and Washington should act quickly to follow that precedent. The unique blend of tribal, state and federal law is commonly known as “Indian law.`

Instructed by nearly two centuries of U.S. Supreme Court precedent, beginning in 1832 with Worcester v. Georgia, national and local government alike recognize Washington tribes as “distinct, independent political communities, retaining their original natural rights” in matters of local self-government. By 1886, the High Court reiterated in U.S. v. Kagama that tribes are a “separate people, with the power of regulating their internal and social relations,” and in the 1959 case of Williams v. Lee, the Court made abundantly clear that tribes possess “the right . . . to make their own laws and be ruled by them.”

Over the past decade, Washington tribes have exercised their inherent sovereignty to become an influential economic, legal, and political force. In union with Corporate America, the tribes are now engaged in real estate development, banking and finance, telecommunications, wholesale and retail trade, and tourism. Consider these facts:

• In 2002, Washington’s 21 gaming tribes generated $648 million in revenue, contributing $2.9 million to local government.
• Washington tribes currently employ nearly 15,000 Indian and non-Indian employees. By comparison, Micro-soft employs 20,000 Washingtoni-ans.
• Washington tribes occupy 3.2 million acres of land in the State.

A corollary to the dramatic rise in tribal economic development is the increased interaction of Washington tribes and non-Indians seeking business, employment, or recreation on reservations. In turn, a wide array of legal matters arise, thereby interjecting Indian law issues into virtually every area of law.

Indian law principles underlie every business transaction involving Indians and their land. Thus, any attorney facilitating deals with tribes must have a basic understanding of Indian law. Indian lands within Washington are now being developed by Fortune 500’s most powerful companies, including Wal-Mart, AT&T, Home Depot, and Bank of America. The partnerships between Washington tribes and such national corporations are generating billions of dollars in income and tax revenue, as well as significant employment opportunities, during downtrodden economic times.

The federal circuit courts of appeals remain split regarding whether federal employment laws apply to tribal employers. The Tenth and Eight Circuits refuse to apply such laws as OSHA and ERISA to tribes, in deference to longstanding notions of tribal self-governance. The Ninth, Seventh and Second Circuits disagree. Until the U.S. Supreme Court resolves this conflict, Washington business and employment attorneys alike must understand precisely how Indian law affects the 15,000 state citizens working for tribes.

Indian law issues are certainly not confined to the tribal business and employment context. Litigation involving the adoption of an Indian child, the probate of real property on tribal lands, or an auto accident on a reservation potentially involve complex jurisdictional issues. Enforcement of a judgment in a consumer collection matter involving tribal members or their reservation property presents procedural obstacles that do not exist under state law. A slip-and-fall case arising in a tribal casino will implicate, as a threshold issue, the unique defense of tribal sovereign immunity. The applicability of state taxes on the sale to non-Indians of household goods at the Wal-Mart on the Tulalip Reservation or a concert ticket at the Muckleshoot Tribe’s White River Amphitheater, requires a detailed reading of both taxation law and federal Indian common law. Even the development of non-Indian owned land near reservations or waterways may implicate tribal treaty-based rights. The general practitioner or public lawyer in Washington will no doubt become involved in a case requiring an analysis of Indian law.

In the best interest of Washington citizens, every lawyer licensed by the WSBA needs understand basic Indian law. One of the WSBA’s new year’s resolutions of should be to include Indian law on the bar exam.