On April 7, 2005, several hundred bar leaders joined tribal dignitaries and community members at the Seattle University School of Law to commemorate the WSBA Board of Governors' unanimous decision on October 22, 2004, to include federal Indian jurisdiction on our state's bar exam beginning in the summer of 2007. Attorney General Rob McKenna, U.S. Attorney John McKay, King County Prosecutor Norm Maleng, Association of Washington Tribes Chairman Brian Cladoosby, and Northwest Indian Fish Commission Chairman Billy Frank joined one another in celebration of a milestone in state tribal relations.
Our state's new bar exam policy exemplifies the stated purposes of General Rule 12 - to "promote an effective legal system, accessible to all" and "foster and maintain high standards of competence, professionalism, and ethics among its members" - as fully discussed below. While the rare change to Washington's bar exam regime is not founded upon "political or social issues" unrelated to the practice of law and thus does not violate GR 12(c)(I), our legal community cannot ignore the significant social impact the new bar exam policy will have on the state of Washington and its citizens.
The article explains how our new bar exam policy will help ensure the protection of the Washington public; allow indigent Native and non-Native persons access to justice in disputes arising out of Indian Country; increase the diversity of our legal profession; and enhance the historically strained government-to-government dialogue between Washington's state and trbal sovereigns.
Competence.
At its core, the issue of including federal Indian law on bar examinations is one of competence and professionalism. In the June 2004 edition of De Novo, Tim Woolsey stated it best:'
"Including American Indian law on the bar exam will produce new attorneys that can spot issues and competently represent tribal and non-tribal clients in Washington. ... (I)t is our professional responsibility to be skilfully and thoroughly aware of these issues to uphold minimum standards of competence... (and) to zealously advocate for all clients to the best of our ability."
Indeed, RPC 1.1 makes clear that we each have an ethical obligation to provide competent representation to our clientele and thus to obtain legal knowledge reasonably necessary for the representation.
According to the National Conference of Bar Examiners and the ABA Section of Legal Education and Admission to the Bar:
The bar examination should test the ability of an applicant to identify legal issues . .. such as may be encountered in the practice of law, to engage in a reasoned analysis of the issues and to arrive at a logical solution by the application of fundamental legal principles.... Its purpose is to protect the public."1
As the Board of Governors concluded, testing fundamental federal Indian law on our bar exam will serve to protect the Washington public, Indians and non-Indians alike, from the unknowing or unwitting practice of Indian law.
Reasoning that a lawyer practicing here is most likely to encounter questions of federal Indian jurisdiction - questions which fundamentally ask whether a tribal, state and/or federal court, if any, has authority to adjudicate a dispute arising out of Indian Country - the result of the Governors' conclusion to add this subject to the bar exam will result in lawyers learning the following four tribal jurisdictional principles to properly represent and protect the Washington citizenry.
- Indian Self-Governance.
Indian tribes are "distinct, independent political communities, retaining their original natural rights" in matters of local self-government. 2 While no longer "possessed of the full attributes of sovereignty," tribes remain a "separate people, with the power of regulating their internal and social relations."3 Essentially, Indians possess "the right ... to make their own laws and be ruled by them."4 Accordingly, counsel cannot presume that a business or litigation matter involving a Washington tribe or tribal member(s) and/or implicating tribal self-governance, are par for the course and thus subject to state law and jurisdiction. - Tribal Civil and Criminal
Jurisdiction.
Tribal subject matter jurisdiction over civil and criminal matters arsing in Indian Country depends predominately upon: (1) whether the defendant is a tribal "member" or "non-member" (the latter being a person who is not enrolled as a member of the tribe which seeks to assert jurisdiction); (2) whether the events at issue arose on fee, trust or allotted lands; and (3) whether federal laws like "Public Law 280" (codified at RCW 37.12.010) or the Major Crimes Act, confer tribal, state and/or federal courts authority to adjudicate the dispute. These highly complex and fact sensitive issues need be the first area of inquiry for lawyers handling a dispute arising out of the reservation. - Sovereign Immunity.
Washington tribes and tribal agencies, entities and enterprises are generally immune from civil suit, whether in our state's tribal, state or federal courts, for alleged acts or omissions arsing on or off the reservation. For any tribunal to have jurisdiction over a claim against a Washington tribe, the tribal sovereign or U.S. Congress must have clearly and unequivocally waived the tribe's immunity. "Sovereign immunity is not a discretionary doctrine that may be applied as a remedy depending upon the equities of a given situation."5 Thus, lawyers should not file even the most compelling suit against a tribe without cogent proof of a tribal immunity waiver, or their client's claims will be summarily dismissed under CR 12(b)(1) and 82.5. - Indian Child Welfare Act (ICWA).
Jurisdiction over the adoption or. custody of Indian children is governed by ICWA, which "was enacted to counteract the large scale separations of Indian children from their families, tribes, and culture through adoption or foster care placement, generally in non- Indian homes."6 While Washington state and tribal courts possess concurrent jurisdiction over Indian adoption or custody matters, the stature makes clear that "[i]n any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding."7 A family lawyer's (and/or judge's) failure to facilitate the intervention of the child's tribe in such a proceeding could lead to a reversal of the adoption/custody decree and, sadly, removal of the Indian child from the family that was awarded custody.
Washington's new bar exam policy will help our profession protect that which is sacred to us all: health, freedom, home, economic security, and family.
Access to Justice.
Our bar's failure to generally understand fundamental Indian law, and resultant anxiety about handling matters that implicate tribal jurisdiction, deprives low-income Washington residents - both Indians and non-Indians - from obtaining legal counsel and in turn from gaining access to tribal and state judicial systems for the resolution of matters affecting basic familial and property rights.
As John Sledd, director of the Northwest Justice Projects' Native American Unit and Indian legal aid war or for the past 22 years, wrote the governors:
CLEAR intake lawyers tell me that three-quarters of volunteer lawyer programs and most staff legal service lawyers will not handle Indian or tribal law cases. Ignorance of the law is a major reason why. As a result, poor Native Americans get help for only one in ten important legal problems, according to the state-wide legal needs study. Non-Natives get help for one problem in seven. Both statistics are shocking, but the disparity for Native people is an intolerable discrimination.
The knowledge of basic Indian law that will be instilled in new lawyers though the bar exam will translate into legal help for indigent Native and non-Native people in Washington.
Diversifying the Bar.
Native Americans are without question the most under-represented ethnic demographic in the legal profession. Depending who you ask, Indian attorneys comprise between 0.2 to 0.7% of the WSBA's 29,000 members. Nationally, although there are 4.1 million self-identified Native Americans (according to the 2000 Census) and 1 million lawyers in the U.S., only 1,800 - yes, eighteen hundred - are Indian attorneys.
Every year 35,000 people pass the bar exam. Still, in this era, widely know as the era of tribal self-determination, there are merely 1,800 Indian lawyers to speak of. Washington's new bar exam policy has sent, and will continue to send, a loud and clear message to Indian Country that the practice of law is relevant to life on the reservation. As a result, Indian youth in Washington will increasingly consider the legal profession as a career option, and the 160,000 Indian citizens of our state will some day see their faces reflected in the WSBA.
State-Tribal Relations.
In 2004, both the 54 Northwest tribes that comprise the Affiliated Tribes of Northwest Indians, and the National Congress of American Indians, a consortium of over 230 tribal governments, resolved that 22 states, including Washington, should include Indian law on their respective bar exams, declaring that:
(I)f attorneys for the American public, particularly federal, state and local government, better understood the legal concepts of Tribal self-governance and Tribal jurisdiction, there would be fewer disputes and government -to-government dialogue would be greatly enhanced.
By July 2004, state bar leaders joined tribal lawyers and leaders to publicly urge the WSBA to include Indian law on our bar exam. Supporters included now Governor Christine Gregoire, Attorney General McKenna, Maleng, McKay and his Eastern Washington counterpart Jim McDevitt, and UW and Gonzaga Law School deans Joe Knight and George Crithchlow.
Who would have imagined that in Washington - "a state that hanged Indian leaders, strong-armed treaties, burned villages, beat up Indian fishermen and launched a notorious Indian opponent, Slade Gorton"8 - a bar exam policy, of all things, would harmonize state and tribal voices and exemplify government-to government dialogue in the new millennium?
Kudos to our legal community for supporting and enacting policy that will heighten the bar for legal professionalism, lawyer diversity and tribal-state relations in our state, whlie lowering the bar low-income people must overcome to secure access to justice in Washington.
Footnotes
- See Comprehensive Bar Admission Requirements 2004, at p. ix.
- Worcester v. Georgia, 31 U.S. 515 (1832).
- U.S. v. Kagama, 118 U.S. 375 (1886).
- Wiliams v. Lee, 358 U.S. 217, 220 (1959).
- Chemehevui Indian Tribe v. California State Bd. of Equalization, 757 F.2d 1047, 1052 n.6 (9th Cir. 1985).
- Matter of Adoption of Crews, 118 Wn.2d 561, 567 (1992); 25 U.S.c. 1902.
- 25 U.S.c. 1911(c).
- See Rob McDonald, "Move invalidates long-ignored legal principles," Spokesman-Review, Bl, October 29,2004.
Gabriel S. Galanda is an associate in Seattle with Willams, Kastner & Gibbs, PLLC, and the Chair of the WSBA Indian Law Section. Gabe is a descendant of the Nomlaki and Concow Tribes, and an enrolled member of the Round Valley Indian Confederation in Northern California. He is past President of the Northwest Indian Bar Association and past Chair of the WSBA Indian Law Section.
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