November 2002

What's Indian Law Got to Do with It?

by Gabriel S. Galanda

Indian lawyers and judges from across the state traveled to the Quinault Beach Resort in Ocean Shores and met with the WSBA Board of Governors (BOG) on July 26, 2002, to discuss the unique nature of Indian law and tribal-court practice. Through a dynamic question-and-answer presentation, the tribal attorneys and judges highlighted the relevance of issues of federal Indian law and tribal law, not only to reservation advocates, but to general practitioners, in-house corporate counsel and public lawyers in Washington. The synergy present at Quinault among Indian practitioners and BOG members fueled a joint effort to educate the WSBA at large about the significance of Indian law and tribal practice in Washington.

The meeting with the BOG was the first of several developments that have raised the profile of Indian law and its practitioners within the WSBA. In September 2002, Fawn Sharp (Quinault), reservation attorney for the Quinault Indian Nation, was appointed to serve as the first Indian woman on the Board of Governors. The Northwest Indian Bar Association and the WSBA Indian Law Section have initiated a discussion among state bar leaders as to whether Indian law should be tested on the Washington bar exam, as it is in New Mexico. Finally, with the assistance of the Washington State Trial Lawyers Association BOG liaison Randy Gordon, the WSBA has dedicated this edition of Bar News to Indian law and tribal-court practice, to provide Indian lawyers and judges an opportunity to share with all members of the state bar their perspectives on an array of Indian legal issues. In the following paragraphs, I seek to provide a brief legal, political and economic context for the articles that follow.1 

Instructed by two centuries of U.S. Supreme Court precedent, Indian tribes in Washington are recognized by federal, state and local government as "distinct, independent political communities, retaining their original natural rights" in matters of local self-government. Worcester v. Georgia, 31 U.S. 515, 559 (1832). Washington tribes are a "separate people, with the power of regulating their internal and social relations." U.S. v. Kagama, 118 U.S. 375, 381-82 (1886). In short, the tribes possess "the right … to make their own laws and be ruled by them." Williams v. Lee, 358 U.S. 217, 220 (1959). Furthermore, like other sovereign governmental entities, the tribes enjoy common-law sovereign immunity and probably cannot be sued. An Indian tribe in Washington is subject to suit only where Congress has "unequivocally" authorized the suit or the tribe has "clearly" waived its immunity. Kiowa Tribe v. Manufacturing Technologies, 523 U.S. 757 (1998).

Much like the Washington state government, tribal governments are elaborate entities, consisting of executive, legislative and judicial branches. The office of the tribal chairman (like that of the state governor) and the tribal council (like the state Legislature) govern the tribe under a tribal constitution and code of laws. The tribal court interprets and applies the tribe's law. Although the tribal court may resemble Anglo-American courts, it operates in a significantly different way. The article by tribal judges Edythe Chenois (Quinault), Jane Smith (Colville) and Cynthia Jordan poignantly describes the unique strength and spirit of Washington's 25 tribal courts. Juxtaposed with the judges' firsthand observations about the integrity of tribal courts, however, are recent U.S. Supreme Court decisions, explained by Professor Robert Anderson (Minnesota Chippewa, Bois Forte Band), that have diminished tribal self-governance and jurisdiction relative to the conduct of non-Indians within tribal territory.

Over the past decade, Washington tribes have exercised their sovereignty and become an influential economic force. The tribes in Washington are creating and operating new businesses in the areas of real estate development, banking and finance, media, telecommunications, wholesale and retail trade, tourism and gaming. Consider these facts:

• Washington tribes occupy more than 3.2 million acres of reservation lands.
• Washington tribes currently employ nearly 15,000 Indian and non-Indian employees. (By comparison, Microsoft employs 20,000 Washingtonians.)
• In 1997, Washington tribes paid $57 million dollars in federal and state taxes.
• Annually, Washington tribes contribute $1 billion to the state's overall economy.

A corollary to the dramatic rise in tribal economic development is the increased interaction of Indian tribes and non-Indians who seek business, employment or recreation on reservations within Washington. In turn, an array of legal matters between Washington tribes and non-Indian persons and entities arises, thereby interjecting Indian law issues into virtually every area of law.

Indian law principles underlie each and every business transaction involving Indians and their land. Thus, any attorney representing corporate entities or individuals dealing with tribes must possess a basic understanding of Indian law. Indian lands within Washington are now being developed by corporations such as Wal-Mart, Home Depot and Bill Graham Enterprises. The partnerships between Washington tribes and such national corporations are generating billions of dollars in income and tax revenue. The articles by Rion Ramirez (Turtle Mountain Chippewa) and Jill Conrad (Nez Perce) highlight some of the transactional and related federal litigation issues that corporate attorneys in Washington should understand when conducting business on the reservation.

Indian law issues are not confined to tribal business transactions and employment situations. Litigation arising from an adoption involving an Indian child, a bequest of real property within the exterior boundaries of a reservation, or an automobile accident on the reservation potentially involve complex jurisdictional and choice-of-law issues. Enforcement of a judgment in a consumer-collection matter involving a tribal member or his property on the reservation presents jurisdictional obstacles that do not exist in state or federal court. A slip-and-fall case arising in a tribally owned casino or business enterprise will implicate, as a threshold issue, the defense of tribal sovereign immunity. The applicability of state taxes to the sale of products or services to non-Indians on the reservation may hinge upon a detailed reading of both taxation law and federal Indian common law. Even the development of non-Indian-owned land adjacent to or near reservations or waterways may implicate Indian law issues, particularly tribal treaty-based rights. The general practitioner or public lawyer in Washington will in all likelihood become involved in a case that will require an analysis and application of federal Indian law. For attorneys in Washington, Indian law's got everything to do with it.

NOTE

1. For a more thorough introduction to Indian law in this state, see Reservations of Right: A Practitioner's Guide to Indian Law in Washington.

More Information

• Indian Law Section