Raising the bar for lawyers
State by state, Native Americans in the West are making sure lawyers know the law in Indian Country
In July of 2002, Christopher Wright took a job as a pipe-layer at a company owned by the Confederated Tribes of the Colville Reservation, where he worked on an off-reservation housing project. Wright, a non-Indian, claimed that he endured discrimination and harassment from his Native co-workers, finally forcing him to resign in February 2003. He sued the company. His case ended up in the Washington State Supreme Court, which last December dismissed the case based on sovereign immunity - the long-standing doctrine that tribes, as sovereign nations, are immune from most lawsuits.
Clearly, justice in Indian Country doesn't just affect Indians. As tribal enterprises grow, more non-Indians are visiting and moving to reservations or taking jobs at tribal businesses. As these interactions multiply, so do the legal cases affected by Indian law, but most lawyers in the West know little about how to handle such cases. That's slowly beginning to change, though; in Washington state, this year's graduating class of law students became the first in state history tested on Indian law.
"Indian law intersects every other area of practice," says Gabe Galanda, a Seattle attorney and member of California's Round Valley Indian Confederation, who spearheaded the campaign to have the Washington State Bar Association adopt the testing requirement. Fearing malpractice charges, lawyers often refuse cases involving tribal members or reservation lands. As a result, many people - Indian and non-Indian alike - don't get the help they need. Galanda hopes the new policy will, with time, increase access to justice for everyone.
Tribal sovereignty is the first of four concepts that new Washington lawyers will have to learn. Grounded in international law and the United States Constitution, tribal sovereignty is the principle that tribes have inherent rights to be governed by their own laws - to the exclusion of state and local but not federal authority. It extends to some off-reservation rights as well, such as hunting, fishing and gathering, says Robert Anderson, associate professor of water, natural resource and tribal law at the University of Washington and member of the Minnesota Chippewa Tribe. Today, a lot of time has to be spent educating lawyers and judges on the basics of this principle before they can start to address a case involving tribal sovereignty, Galanda says.
For example, tribes aren't subject to state labor laws on the reservation, but when they own businesses off-reservation the issue becomes murkier. Before negotiations can even begin with state labor officials, all parties involved must have a baseline understanding of applicable treaties and sovereignty.
Because tribes are self-governing, new lawyers must study tribal jurisdiction: whose rules and courts have authority where, and over whom. Such thorny questions can affect everything from criminal cases to land-use regulations, taxation, and even traffic laws on reservation land. Ignorance of tribal jurisdiction can lead to cases being dismissed that shouldn't be, says Ron Whitener, professor of Indian law at the University of Washington School of Law and member of the Squaxin Island Tribe.
For example, Galanda says, if Wright's lawyer had filed a racial discrimination claim in tribal court, the tribe's own laws may have allowed for some resolution. Instead, the attorney filed the case in state court, and sovereign immunity from most lawsuits - the third principle new lawyers will need to understand - protected the tribe. Wright's case spent years wending its way to the state's Supreme Court. Attorneys with a better understanding of sovereign immunity might not have been so eager to waste their clients' time and money trying to overcome it, says Anderson.
Finally, new lawyers will learn about the Indian Child Welfare Act. In any custody or adoption proceeding involving a Native child, the child's tribe must be notified and permitted to intervene, or the court's decision can be thrown out. In Washington, in cases where this rule wasn't followed, custody or adoption orders have been overturned after a family had already begun to bond with a child, Galanda says. The new rules could head off such tragic mistakes in the future.
Lawyers become governors, attorneys general, legislators and judges, and Whitener thinks ignorance of Indian law can lead to unrealistic perceptions by powerful public officials. He cites the common idea that tribes are getting rich from casinos. Tribes, he says, have very little authority to levy taxes. So although as governments they're responsible for providing an array of services, they have trouble funding them.
Though a handful of tribes have high per capita casino revenues, he says in most cases such income probably doesn't exceed the taxes that a similarly sized government could collect. When policymakers misunderstand this, it leads to uninformed decisions regarding casino regulation and funding for Indian services.
Washington, which Whitener calls one of the "Indian states" because of its relatively high population of Native Americans, follows the lead of New Mexico, which in 2002 became the first state in the nation to require that lawyers be tested on Indian law. This year, South Dakota became the third state to add the requirement, and several others are considering it, including Arizona, Montana, Oregon, Idaho and California.
As the idea spreads, Galanda thinks it will also begin to change the face of the legal profession, where Native Americans are represented at a tenth of their proportion in the U.S. population. The policy, says Galanda, "has sent ... a loud and clear message to Indian Country that the practice of law is relevant to life on the reservation" - a message that, he hopes, will translate into more Indian students choosing law as a career.
The author just completed an HCN internship.