August 2004

WSBA Resolutions Committee

NOTICE OF PUBLIC HEARING
Thursday September 9, 2004

The resolution set forth below has been submitted to the Board of Governors. Pursuant to Article VII, §F, of the WSBA Bylaws, the Board will determine at its July 30-31, 2004, Board meeting whether the resolution is within the purposes of the Bar as set forth in Article I of the Bylaws. If the Board so finds, the Board will refer the resolution to the Resolutions Committee, and it will be offered for membership consideration at the Annual Business Meeting of the WSBA, which will be held Thursday, September 16, 2004, beginning at 6:30 p.m. at the Seattle Marriott Waterfront Hotel, 2100 Alaskan Way, Seattle.

The WSBA Resolutions Committee will conduct a public hearing on the resolution in accordance with Article VII of the WSBA Bylaws. The public hearing will begin at 1:30 p.m. Thursday, September 9, 2004, at the offices of the WSBA, 2101 Fourth Ave., Ste. 400, Seattle, WA 98121-2330. Proponents and opponents of the resolution are urged to attend the hearing or to present their views in written form for consideration by the Resolutions Committee by sending their comments to the Executive Director at the above address.

The Resolutions Committee will recommend approval, rejection, or amendment of the resolution, which will then be debated and voted on at the annual meeting. The members of the Resolutions Committee are Mark A. Johnson (chair), Paula E. Boggs, Robert M. Boggs, Zulema Hinojos-Fall, Elizabeth Li, Fawn Sharp, Ada Shen-Jaffe, and J.D. Smith.

RESOLUTION

Indian Law on the Washington State Bar Examination

WHEREAS, we, interested members of the Washington State Bar Association (WSBA), in support of our friends and colleagues in the WSBA Indian Law Section and the Northwest Indian Bar Association, do hereby submit the following resolution; and

WHEREAS, the recent growth in tribal economic development and the resulting increase in interaction of Washington's twenty-nine (29) federally recognized Indian tribes with non-Indian entities and individuals, both on and off of the reservation, has given rise to an array of business transactions, regulatory issues and litigation matters between tribal and non-tribal parties in this state; and

WHEREAS, the citizens of Washington and their attorneys do not generally understand the sovereign legal rights of Washington Indian tribes; nor do they understand precisely how tribal self-governance and self-determination, and the laws and ways of Washington Indian tribes, affect and intersect Anglo-American and non-Indian legal principles; and

WHEREAS, the integrity and competence of the legal profession in this state would be enhanced if attorneys licensed by the WSBA generally understood significant federal jurisdictional Indian principles, particularly the common law doctrines of tribal sovereignty, tribal sovereign immunity, tribal subject matter jurisdiction (both criminal and civil), and the federal Indian Child Welfare Act; and

WHEREAS, in February 2002 the State Bar of New Mexico became the first state bar association to test the topic of Indian law on its bar licensing exam, with a view towards educating public and private legal counsel, and in turn the public in New Mexico, as well as federal, state and local governments, about the legal rights of sovereign Indian tribes.

NOW, THEREFORE, BE IT RESOLVED that we do hereby urge that the WSBA Board of Governors enact and carry out policy to ensure that every attorney licensed by the Washington State Supreme Court, as well as members of the tribal, state and federal judiciary in this state, better understand the sovereign legal rights of Washington Indian tribes;

BE IT FINALLY RESOLVED that we do hereby request the assistance and collaboration of the WSBA Committee of Law Examiners and Professional Development Committee to carry out the provisions of this Resolution.

STATEMENT IN SUPPORT OF RESOLUTION

The resolution endorsed by 120 WSBA members urges that federal Indian jurisdictional issues be tested on our state's bar examination, as in New Mexico.1 Its goal is well-stated by Tim Woolsey in "Should Indian Law Be Tested on the Washington Bar Exam?" in the June 2004 De Novo:

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 skillfully 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.

See RPC 1.1 ("A lawyer shall provide competent representation to a client . . . [which] requires the 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 . . . ."2

The resolution's ultimate objective is to protect the Washington public — Indian and non-Indian citizenry alike — from the unknowing or unwitting practice of Indian law.

Indian tribes are a "separate people, with the power of regulating their internal and social relations."3 Local tribes have recently exercised their sovereignty and regulatory authority to become an influential economic force. Consider that Washington tribes:

• Annually contribute $1 billion to the state's overall economy.
• Employ nearly 15,000 Indian and non-Indian employees (by comparison, Microsoft employs 20,000 Washingtonians).
• Occupy 3.2 million acres of land in the state.4

A corollary to the rise in tribal economic development is the dramatic increase in non-Indian citizens seeking business, employment, or recreation on reservation lands; and in an array of ensuing legal matters that implicate tribal jurisdiction.

Indian jurisdictional principles underlie every transaction in Indian Country. With Wal-Mart, Home Depot, and Clear Channel now developing Washington reservations, and the resulting billions of dollars in revenue and thousands of jobs, our state's corporate lawyers must understand tribal jurisdiction.

What's more, Indian jurisdictional issues extend into the domestic arena. Litigation involving the adoption of an Indian child, the probate of real property on tribal lands, an auto accident on the reservation, or a reservation-based crime, likely involve complex jurisdictional issues. Even a slip-and-fall arising in a tribal casino will implicate the threshold defense of sovereign immunity — a question of subject-matter jurisdiction.

The general practitioner or public lawyer in Washington will encounter a case implicating tribal jurisdiction. Indeed, the 120 WSBA members who believe our Bar must better understand Indian law include civil and criminal counsel for municipal, county, and federal government, state administrative-law judges, legal-aid and nonprofit lawyers, and lawyers from large firms throughout the state. WSBA President Emeritus Dick Manning, U.S. Attorneys John McKay and Jim McDevitt, and King County Prosecutor Norm Maleng also endorse the resolution. The broad showing of support evidences that Indian jurisdictional matters affect lawyers and clients of every type in Washington.

Our state's Bar exam is, by design, the best forum to instill lawyers with knowledge reasonably necessary to ensure the protection of all Washington citizens. To that end, the WSBA would be prudent to test tribal jurisdiction on our Bar exam.

NOTES
1 Idaho, Oregon, Montana, and Oklahoma are also considering whether to test Indian law on their bar exams.
2 See Comprehensive Bar Admission Requirements 2004, at p. ix (www.ncbex.org/pub.htm).
3 U.S. v. Kagama, 118 U.S. 375 (1886).
4 See Gabriel S. Galanda, "Indian law is crucial to this state," Seattle Post-Intelligencer, October 7, 2003 (www.seattlepi.nwsource.com/opinion/142764_indianlaw07.html).