By Gabriel S. Galanda
In late September, another several hundred citizens successfully transitioned through the Oregon legal community’s rite of passage – the state bar examination. The exam tests, or threatens to test, over 25 substantive areas of law. Applicants for admission must stand prepared to analyze principles fundamental to the Anglo-American legal system, from business and family law to state and federal constitutional law. Such subjects are tested by the Board of Bar Examiners to ensure that each and every attorney who will protect the essential legal rights of Oregon citizens, is competent to do so.
However, there is an age-old, ever-evolving and increasingly prevalent body of law that is not tested in Oregon. The roots of these laws were planted throughout the Northwest long, long before Meriwether Lewis and William Clark discovered Oregon in 1806. 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 interwoven into the fabric of our state and federal legal systems, this area of law is simply not tested. New Mexico recently became the first state to test this subject on its bar exam, and Washington is considering becoming the second. Oregon should act quickly to follow that trend. The unique blend of tribal, state and federal law is commonly known as 'Indian law.'
Instructed by nearly two centuries of U.S. Supreme Court precedent, beginning in 1832 with Worcester v. Georgia, national and local governments have recognized Oregon tribes as 'distinct, independent political communities, retaining their original natural rights' in matters of local self-government. By 1886, the Court reiterated in U.S. v. Kagama, 118 U.S. 375, 381-82, Indians are a 'separate people, with the power of regulating their internal and social relations,' and in the 1959 case of Williams v. Lee, 358 U.S. 217, 220, the Court made abundantly clear that tribes possess 'the right … to make their own laws and be ruled by them.' Over the past decade, Oregon 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: 1) In 2002, Oregon’s eight gaming tribes generated $370 million in revenue, contributing $8.5 million to local government and state non-profit groups; 2) Oregon tribes currently employ thousands of Indian and non-Indian employees. For example, the Confederated Tribes of Grand Ronde employ 1,500 Oregonians, and the Cow Creek Band of the Umqua Tribe employs 1,200; 3) Oregon tribes occupy nearly one million acres of land in the State.
A corollary to the dramatic rise in tribal economic development is the increased interaction of tribes with non-Indians seeking business, employment or recreation on the reservation. In turn, a wide array of legal matters arise, interjecting Indian law issues into virtually every area of law.
Indian law principles underlie every business transaction involving Indians and their land. Indian lands are now being developed by Fortune 500’s most powerful companies, including Wal-Mart, AT&T, Home Depot and Bank of America. Such partnerships are generating billions of dollars in income and tax revenue, as well as significant employment opportunities, during downtrodden economic times. Indian law issues are certainly not confined to the tribal business and employment context. Litigation involving the adoption of an Indian child, the probate of real property on tribal lands, or an auto accident on a reservation potentially involve 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 of goods and services to non-Indians on tribal lands 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 Oregon will no doubt become involved in a case requiring an analysis of Indian law. In the best interest of all Oregon citizens, be they Indian or non-Indian, every lawyer licensed by the Oregon State Bar need understand basic Indian law. What better forum to achieve this than through the state bar exam.
ABOUT THE AUTHOR
Gabriel S. Galanda is an attorney with the Seattle-Portland law firm of Williams, Kastner & Gibbs. He is past- president of the Northwest Indian Bar Association, and chair of the WSBA Indian Law Section.
© 2003 Gabriel S. Galanda