Indian law is crucial to this state

On Friday, another 500 citizens will successfully transition through our legal community's rite of passage -- the state bar examination. The Washington State Bar Association, through authority delegated by the Washington Supreme Court, conducts the test bi-annually.

Aspiring lawyers must past the exam, which tests, or threatens to test, 24 substantive areas of law. Bar takers must be prepared to analyze principles fundamental to the Anglo-American legal system, such as business law, family law, real property, torts and state and federal constitutional law.

The bar association tests these subjects to ensure that every attorney is competent to protect the essential legal rights of Washington citizens. However, there is an age-old, ever-evolving and increasingly prevalent body of law that is not tested.

The roots of these laws were planted throughout the Northwest long before Meriwether Lewis and William Clark discovered southern Washington in 1805. 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 U.S. Constitution.

Although inextricably woven into the fabric of our state and federal legal systems, this area of law remains missing from our state's bar exam. New Mexico recently became the first state to test this legal subject on its bar exam, and Washington should act quickly to follow that precedent. The unique blend of tribal, state and federal law is commonly known as "Indian law."

National and local governments alike -- instructed by nearly two centuries of U.S. Supreme Court precedent, beginning in 1832 with Worcester v. Georgia -- recognize Washington tribes as "distinct, independent political communities, retaining their original natural rights" in matters of local self-government. By 1886, the high court reiterated in United States v. Kagama that tribes are a "separate people, with the power of regulating their internal and social relations." In the 1959 case, 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, Washington tribes have exercised their inherent sovereignty to become an influential economic, legal and political force. United 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:

In 2002, Washington's 21 gaming tribes generated $648 million in revenue, contributing $2.9 million to local government and state non-profit groups.

Washington tribes employ nearly 15,000 Indian and non-Indian employees. By comparison, Microsoft employs 20,000 Washingtonians.

Washington tribes occupy 3.2 million acres of land in the state.

A corollary to the dramatic rise in tribal economic development is the increased interaction of Washington tribes and non-Indians seeking business, employment or recreation on the reservation. In turn, a wide array of legal matters arises, 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 and Bank of America.

The partnerships between Washington 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 10th and 8th circuits refuse to apply such laws as OSHA and ERISA to tribes, in deference to longstanding notions of tribal self-governance. The 9th, 7th and 2nd circuits disagree.

Until the high court resolves this conflict, Washington business and employment attorneys alike must understand precisely how Indian law affects the 15,000 state citizens working for tribes.

Indian law issues certainly are not confined to the tribal business and employment context. Litigation about the adoption of an Indian child, the probate of real property on tribal lands or an auto accident on the reservation potentially involves 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 of household goods at the Wal-Mart on the Tulalip Reservation or a concert ticket at the Muckleshoot Tribe's White River Amphitheater 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 Washington will no doubt become involved in a case requiring an analysis of Indian law. In the best interest of Washington citizens, every lawyer licensed by the state bar association needs to understand basic Indian law. What better forum to achieve this than through the state bar exam.

Gabriel S. Galanda is chairman of the WSBA Indian Law Section and two-term president of the Northwest Indian Bar Association.

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