By October, another 35,000 citizens successfully transitioned through the legal profession's summer rite of passage - the state bar examination. Each state bar association or board of examiners administers the test bi-annually, through authority delegated by that state's supreme court. Aspiring lawyers must past the exam, which frequently tests, or threatens to test, over 25 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 state bar to ensure that each and every attorney who will protect the essential legal rights of state citizens, is competent to do so.
However, there is an age-old, ever-evolving and increasingly prevalent body of law that is not tested on the bar exam. The roots of these laws were planted throughout the country long, long before the Declaration of Independence was signed in Philadelphia, the 1803 Louisiana Purchase, or Meriwether Lewis and William Clark's "discovery" of the Pacific Northwest 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 interstate commerce clause to the U.S. Constitution. Although inextricably interwoven into the fabric of our federal and state legal systems, this area of law remains amiss from every state bar exam, with one exception. The State of New Mexico recently became the first state to test this legal subject on its bar exam, and the majority of the United States 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 governments alike recognize Indian 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, the 550-plus federally recognized 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:
oIn 2002, gaming tribes contributed $32 billion in revenue, $12.4 billion in wages, and 490,000 jobs to the U.S. economy.
oTribal businesses, although not generally subject to state and federal taxation, have annually generated more than $246 million in tax revenue for states and counties, and $4.1 billion for the federal government.
oIndian tribes occupy more than 55 million acres of land in 30 states.
A corollary to the dramatic rise in tribal economic development is the increased interaction of Indian tribes, and non-Indians seeking business, employment, or recreation on the reservation. 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, Verizon, and Bank of America. The partnerships between Indian 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, business and employment attorneys alike must understand precisely how Indian law affects the droves of U.S. citizens who work for Indian 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 the reservation potentially involve complex jurisdictional issues. Enforcement of a judgment in a consumer collection matter involving a tribal member or his 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, from a ticket to witness the WNBA's Connecticut Sun play basketball on the Mohegan Reservation, to household goods at the Wal-Mart on the Tulalip Reservation in Washington State, 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 America will no doubt become involved in a case requiring an analysis of Indian law. It is in the best interest of U.S. citizens that every lawyer licensed to practice in the thirty-plus states with a large presence of Indians and/or reservation lands - New York, Connecticut, California and Arizona, to name a few - understand basic Indian law. What better forum to educate lawyers and ensure that the legal rights of all Americans, be they Indian or non-Indian, will be adequately protected, than through the state bar exam.
Gabriel S. Galanda is an Indian law attorney in Seattle with Williams, Kastner & Gibbs, PLLC. He serves as Chair of the Washington State Bar Association Indian Law Section and was past two-term President of the Northwest Indian Bar Association (www.nwiba.org). Mr. Galanda is a descendant of the Nomlaki and Concow tribes, and is enrolled with the Round Valley Indian Confederation in Northern California.