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Guest Viewpoint By Gabriel Galanda For The Eugene Register-Guard October 10, 2003
In late September, several hundred citizens successfully made it through the Oregon legal community’s rite of passage - the state bar examination.(Copyright 2003 The Register-Guard. All rights reserved.)
In late September, several hundred citizens successfully made it through the Oregon legal community’s rite of passage - the state bar examination. Aspiring lawyers must past the exam, which tests, or threatens to test, more than 25 substantive areas of law. Such testing is intended to ensure that every attorney is competent to protect the essential legal rights of Oregon citizens.
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 before Meriwether Lewis and William Clark came to Oregon in 1806. This code of law was so obviously prevalent in colonial America that the founding fathers wrote its framework into the plain text of the U.S. Constitution.
This unique blend of tribal, state and federal law is commonly known as “Indian law.”
New Mexico recently became the first state to test this on its bar exam. Washington state is considering becoming the second, and Oregon should act quickly to follow that trend.
Instructed by nearly two centuries of U.S. Supreme Court precedent, beginning in 1832 with Worcester vs. Georgia, national and local government alike recognize Oregon tribes as “distinct, independent political communities, retaining their original natural rights” in matters of local self-government. In the 1959 case of Williams vs. Lee, the court made abundantly clear that tribes possess “the right … to make their own laws and be ruled by them.”
In the past decade, Oregon tribes have exercised their inherent sovereignty to become an influential economic, legal and political force. In union with corporate America, tribes are engaged in real estate development, banking and finance, telecommunications, wholesale and retail trade, and tourism. Consider this:
In 2002, Oregon’s eight gaming tribes generated $370 million in revenue, contributing $8.5 million to local governments’ nonprofit groups.
Oregon tribes employ thousands of Indian and non-Indian workers. To give but two examples, the Confederated Tribes of Grand Ronde employ 1,500 Oregon residents, and the Cow Creek Band of the Umqua Tribe employs 1,200 Oregonians.
Oregon tribes occupy nearly 1 million acres of land in the state.
The dramatic rise in tribal economic development results in increased interaction between tribes and non-Indians seeking business, employment or recreation on reservations. In turn, a wide array of legal matters arise, interjecting Indian law issues into virtually every area of law.
Any attorney dealing with tribes must have a basic understanding of Indian law. Indian lands across the country are now being developed by Fortune 500 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. Yet the federal circuit courts of appeals remain split regarding whether federal employment laws apply to tribal employers. Until the U.S. Supreme Court resolves this conflict, Oregon business and employment attorneys alike must understand precisely how Indian law affects the thousands of citizens working for tribes.
Indian law issues are not confined to the context of tribal business and employment. 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 involve tribal treaty-based rights.
In the best interest of Oregonians, every lawyer licensed by the Oregon State Bar needs an understanding of basic Indian law. What better forum to educate lawyers and ensure the protection of Oregon citizens’ legal rights, be they Indian or non-Indian, than through the state bar exam?
Gabriel Galanda is an attorney practicing in Seattle. He serves as president of the Northwest Indian Bar Association and chairman of the Washington State Bar Association Indian Law Section.
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