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Indian law practitioners stress importance of land into trust

MOSCOW, Idaho - The University of Idaho College of Law hosted a two-day conference concerning Indian law on Feb. 5 - 6. Attendees included Indian and Anglo attorneys from throughout Idaho, Washington and Oregon, plus a few attorneys from elsewhere, all of whom practice Indian law. Some work for tribes while others work for a variety of other entities. Several law students at the University and interested tribal members from the region were also in attendance.

The first day was devoted entirely to discussions about fee-to-trust issues, problems that exist and possible solutions. There is an increasingly serious movement in Indian country to return lands within reservation boundaries to Indian control and management. Nash commented that the process and results vary greatly in different parts of the country or on different reservations. It works in some areas and doesn't in others. He also noted that the previous administration offered help and hope but the current administration is no longer considering the subject of fee-to-trust lands which basically creates a moratorium on such transactions. Wording in Section 465 of the Indian Reorganization Act allows this when it authorized the Secretary of the Interior to take fee land into trust "in his discretion."

Doug Nash pointed out that the importance of having land taken into trust is two-fold. One is a matter of historical justice and the second is that in trust the federal ownership would negate many state and local laws such as property tax, zoning laws and others.

There have been some successes. Kevin Bearquiver, a realty specialist with the BIA in California, said that since December 2000 there have been 67 fee-to-trust applications approved that consist of 7,440.77 acres in California. That compares to less than 1,000 acres acquired in the 15 years prior to that. In commenting on the reason for getting lands into trust Bearquiver commented: "It's our sovereignty. It's the restoration of the reservation." Sharon Redthunder, a Nez Perce with the Realty Department of the Colville Confederated Tribe, reported they had acquired 13,000 acres into trust this past year.

On the other hand, the Oneida Nation of Wisconsin which funds a land management staff totaling 28, has had hundreds of applications returned unprocessed, 226 applications last year alone, with only the explanation that "it's not a priority for the Bureau."

A discussion revolved around how to reduce local objections to land being removed from the tax base and placed into trust since counties normally set tax rates and have become dependent on those monies. Redthunder said the Colville Confederated Tribe has become a major employer in the region and pointed out how the tribe impacts communities both through jobs and purchases off reservation.

In the Skajit Valley of Washington local residents are given priority for casino jobs. Counties may lose tax monies but gain in a variety of ways including fire and police departments. Many people are not sufficiently educated to understand these values and more effort towards education is needed. As Doug Nash commented, "there's a large scenario many people miss in regard to fees-to-trust when you look at the other benefits."

It was decided a more pro-active stance needed to be developed to get land into trust. What does Indian country want? Theresa Carmody summed it up by saying: "It's very, very important to us now to have a clear strategy. It's not going to come from the other side. The outcome of the election might guide what we do in the future more than anything else. We need to make the Indian voice heard in the election process. We need to make whatever influence we have work for us."

The morning of Feb. 6 was devoted to discussions about whether Indian law should be included in state bar exams for the Northwest states similar to what now exists in New Mexico. Attorneys were present representing the Idaho, Washington and Oregon States Bar Indian Law Sections, plus the Northwest Indian Bar Association. The Idaho Section is only two years old and this meeting marked the first time that representatives from all four groups had met together.

Don Burnett, Dean of the University of Idaho College of Law, began the discussion by observing, "I can't imagine a better time to be involved with Indian law subjects." There was no disagreement that attorneys need to be versed in Indian law. Indian businesses are now some of the largest businesses in a number of counties in this region and attorneys are becoming increasingly involved with Indian law. The question became one of how best to educate students in law schools. Burnett pointed out that a student's time is finite and that adding a class in Indian law means removing something else to make time for it. Some argued that Indian law should be incorporated into classes already being taught rather than making it a separate class. In limited cases professors likely will object but most would have no objection.

Oregon has three law schools and all teach Indian law as does Idaho's one School of Law. Some, if not all, of Washington's schools also teach Indian law so it may not require so much an addition as it will a change in emphasis. This should likely precede the addition of an Indian law question in the State Bar Exam. Gabriel Galanda, who chairs the Washington State Bar Association Indian Law Section, pointed out the need to collectively reach some conclusions at this meeting so that progress can begin immediately to improve knowledge of Indian law in the legal community. Julie Repp, Nez Perce with Columbia Legal Services in Spokane, pointed out there are 29 federally recognized tribes in Washington and said, "I can't over-emphasize how much ignorance there is out there about Indian law."

Galanda pointed out that only 3,000 attorneys nationally are American Indians, yet 35,000 new attorneys passed the bar last year alone. He felt that Indian law on the exam would encourage Indians to go into law as it would be more relevant to them. Indian attorneys get many calls from other attorneys who need help with Indian law and there simply are not enough who know these laws to give Indian people proper representation and counsel. Galanda feels that the growing importance of Indian law in all aspects of the legal field makes knowledge of such law imperative to professionalism and accountability, perhaps even to avoid malpractice, as Indian law effects every aspect of law already tested on the bar exam. It's an issue that crosses both state lines and federal lines.

Following much discussion, a resolution was passed by three of the four sections in attendance. Oregon State Bar Indian section did not have enough members present for a quorum and will consider the resolution at a later date. The resolution urged the state bar associations to include the topic of Indian law on their respective bar licensing examinations, so legal counsel through the Pacific Northwest and their clientele will better understand the sovereign legal rights of Indian tribes. Assistance was also requested of the Washington State Bar Association Board of Governors and Board of Bar Examiners and the Board of Commissioners of the Idaho State Bar to carry out the provisions of the resolution.

New Mexico led the way in adding the subject of Indian law to its bar exam. Idaho and Washington have now taken the first step towards a similar law and Oregon may soon follow. When and precisely how it might be augmented remains to be determined but this action is a positive step toward amending an obvious need.

Co-chairs for the conference included Douglas Nash, Associate Professor at the University of Idaho College of Law in Moscow, Theresa Carmody, Secretary-Treasurer for the Indian Land Working Group in Portland, and Gabe Galanda, an Associate with Williams, Kastner & Gibbs, PLLC in Seattle.