Four other states may follow
SAN JUAN ISLAND, Wash. - Washington state has become the second state to
add American Indian law to its bar exam.
This means future attorneys will have to have some knowledge of American
Indian law in order to pass the bar.
New Mexico became the first state to require it in 2002. The Arizona,
Idaho, Oklahoma and Oregon bar associations are considering the requirement
The state bar's Board of Governors voted unanimously in favor of the
requirement at its Oct. 22 meeting in Richland. Specifically, the
Washington bar exam will test the following American Indian jurisdictional
Tribal sovereignty ("the right of reservation Indians to make their own
laws and be ruled by them," Williams v. Lee, U.S. 1959).
Tribal civil and criminal jurisdiction.
Tribal sovereign immunity.
The Indian Child Welfare Act. These topics will first be tested on the
summer 2007 exam, allowing current law students the opportunity to study
American Indian law.
Tribal leaders said requiring future lawyers to be educated in American
Indian law would prevent litigation and improve the
government-to-government relationship between tribal and non-tribal
Lummi Chairman Darrell Hillaire said knowledge of American Indian law,
particularly regarding jurisdiction, could have helped prevent the
desecration of an ancestral burial ground on Semiahmoo Spit.
To avoid future desecrations, Lummi tribal officials visited officials in
the San Juan Islands - also part of Lummi's ancestral territory - to ask
that Lummi be consulted about proposed development to avoid disturbing
culturally-significant sites on the islands.
Lummi has also been involved in neighborhood disputes with non-Indians
living on Lummi land.
"We are a distinct people with distinct cultural practices and a distinct
set of laws," Hillaire said. He said knowledge of tribal jurisdictional law
is important because "[non-Indian] development will always run up against
ancestral burial grounds, fishing grounds and cultural sites."
Gabrie Galanda, Nomlaki/Concow, and past chairman of the state bar's Indian
Law Section, remembered when non-Indians wanting to develop on the Tulalip
reservation didn't know if new construction would fall under tribal or
county planning laws.
"If you look at the numbers - there are 3.2 million acres in Indian country
- you can see the potential for property disputes.
"In 1997, Washington tribes employed 15,000 people - Indians and
non-Indians - and collectively they are one of largest employers in the
state. In 1997, Washington tribes contributed $1 billion in direct revenue
to the state. You can begin to see the potential for business disputes
involving tribal jurisdiction."
Wendell George, former Colville tribal council and school board member,
said claims negotiations with the U.S. government in 1994 - for loss of
fisheries and "water power values" caused by the Grand Coulee Dam - were
"stop and go" because U.S. attorneys didn't understand the legal concepts
of tribal self-governance and tribal jurisdiction.
"We spent a lot of time explaining it to them," George said. "They were
reluctant to agree with us."
Today, Colville is trying to get the federal and state governments to
enforce a U.S. Environmental Protection Agency order that Teck Cominco
clean Lake Roosevelt of the pollution from its smelter in Trail, B.C., just
north of the U.S./Canada border. Teck Cominco claims U.S. environmental law
doesn't apply to Canadian companies.
American Indian law is complicated and dates back more than 170 years. The
earliest case regarding federal recognition came in 1832 in Worcester v.
Georgia, which sought to prevent the forced removal of the Cherokee people
from their land.
The U.S. Supreme Court ruled in favor of the Cherokee; Chief Justice John
Marshall ruled that the Cherokee Nation was sovereign, making removal laws
invalid. However, President Andrew Jackson overruled the Supreme Court,
paving the way for the Trail of Tears.
American Indian law in Washington state dates to the 1850s. In adding
jurisdictional law to the bar exam, the state bar "[recognized that] 150
years after our treaties were signed that it is important for Washington
lawyers to demonstrate competency in working with the first governments of
Washington state," said Brian Cladoosby, chairman of the Swinomish Nation
and the Association of Washington Tribes.
"All Washington citizens will benefit from this important change."
Galanda said he expects the addition of American Indian law to the bar exam
will open opportunities for American Indians to study law and pursue law
careers. In Washington state, there are 50 - 60 American Indian attorneys.
American Indians comprise 1,700 - 1/2 of 1 percent - of lawyers nationwide.
Richard Walker is a correspondent reporting from San Juan Island, Wash.
Contact him at email@example.com