February 2005

Indian Law: A Bit More Mainstream in Washington

by Gabe Galanda

In October, a two-and-a-half-year campaign to include federal Indian law on our state’s bar exam culminated in a vigorous two-and-a-half-hour debate before our Board of Governors, and ultimately a unanimous Board decision to test new Washington lawyers’ understanding of four fundamental tribal jurisdictional principles, beginning in the summer of 2007.

During the days that followed the governors’ decision, the media conveyed the magnitude of the new policy to citizens throughout the state, region, and country.1 Every story detailed the who, what, when, where, and why of our Bar Association’s decision. Spokesman-Review columnist Rob McDonald began an editorial he authored with those same details. But, recognizing that State Bar governance is not typically the stuff news headlines are made of, he proceeded to put a slightly different, more poignant spin on the issue. He wrote:
 
In case your eyes dulled over, let me say it another way.
The state that hanged Indian leaders, strong-armed treaties, burned villages, beat up Indian fishermen and launched a notorious Indian opponent, Slade Gorton, has affirmed the need for attorneys to know Indian law.

This is huge.2

Mr. McDonald is correct. The governors’ decision is huge, for every member of the WSBA and for every citizen of our state.

The boom of Indian gaming in Washington (a $648 million industry in 2002) and resultant increase in non-Indian citizens who are flocking to reservations for business, employment, or recreation, has interjected federal Indian legal concepts into every area of practice in our state. In fact, the governors were persuaded that Indian law pervades every legal topic traditionally tested on the Washington bar exam — e.g., civil and criminal procedure, contracts, corporations, administrative law, family law — even commercial paper.

The primary purpose of the bar exam is to ensure lawyers have knowledge reasonably necessary to protect the public3 — including families whose travel onto the Muckleshoot Reservation for a Jimmy Buffet concert at the White River Amphitheater, or the Tulalip Reservation for shopping at Wal-Mart or Home Depot, may subject them to a “foreign” legal regime. To ensure that all the legal rights of all Washington citizens are protected, our Bar wisely adopted policy that will increase awareness that an everyday dispute may not be governed by state law or heard in superior court, and may require the involvement of a tribal sovereign, if the matter arises in Indian Country.

While law students and out-of-state lawyers who aspire to practice in Washington have until 2007 to bone up on tribal jurisdiction, the time is now for WSBA members to understand fundamental federal Indian legal principles, so that we can competently represent and protect our tribal and non-tribal clientele. See RPC 1.1.4 To that end, I offer this overview of the four federal Indian jurisdictional principles that are already part and parcel of the Washington common law and will soon be included on our bar exam: (1) tribal self-governance; (2) tribal civil and criminal jurisdiction; (3) tribal sovereign immunity; and (4) the Indian Child Welfare Act.

Principle #1 — Tribal Self-governance. Under nearly 200 years of federal common law, Indian tribes are “distinct, independent political communities, retaining their original natural rights” in matters of local self-government.5 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.”6 Essentially, Indians possess “the right . . . to make their own laws and be ruled by them.”7 In an opinion issued last summer, Division I of the Washington Court of Appeals, in Rodriguez v. Wong, affirmed that Washington’s 29 federally recognized Indian tribes “retain the authority necessary ‘to protect tribal self-government or to control internal relations.’”8 Much like the federal and state governments, tribal governments are elaborate entities, consisting of executive, legislative, and judicial branches. The office of the tribal chairperson or president (like that of the U.S. president or Washington state governor) and the tribal council (a legislature) operate the tribe under a tribal constitution and/or code of laws, and tribal courts adjudicate most matters arising on or out of the reservation.

Many Washington tribes are organized pursuant to the Indian Reorganization Act of 1934 (IRA).9 Under Section 16 of the IRA, a tribe will have adopted a constitution and bylaws that set forth the tribe’s governmental framework and the authority that each facet of its government possesses. A tribe may also be incorporated under Section 17 of the IRA,10 by which the Secretary of the Interior issues the tribe a federal charter. Through Section 17 incorporation, the tribe may have created a separate legal entity to divide its governmental and business activities. The Section 17 corporation has articles of incorporation and bylaws that identify its purpose, much like a state-chartered corporation. Alternatively, an Indian corporation may have been organized under tribal or Washington law. Under federal common law, the tribal corporation likely enjoys immunity from suit, as discussed below. Particularly when negotiating a tribal business transaction in Washington, counsel should first review the tribe’s organic documents and code of laws, which taken together identify the entity with which you are engaging and your client’s legal rights and potential remedies.

Principle #2(a) — Tribal Civil Jurisdiction. Tribal subject-matter jurisdiction over matters that involve or should involve Washington tribes or tribal members depends predominately upon (1) whether the defendant is Indian or non-Indian;11 and (2) whether the events at issue arose in Indian Country.12 These highly complex issues should be the first area of inquiry for any dispute arising in Washington Indian Country.13 A third threshold determination should be whether “Public Law 280,” codified in Washington at RCW 37.12.010, grants the state civil authority to adjudicate the dispute.14 Under Section 37.12.010, the state has assumed jurisdiction over eight types of civil adjudications arising in Indian Country, including adoption proceedings and disputes related to the operation of motor vehicles on reservation roads.15

Generally speaking, Washington tribal courts have jurisdiction over a suit by any party — Indian or non-Indian — against a tribal defendant for a claim arising in Indian Country.16 Following the “pathmarking” U.S. Supreme Court case of Montana v. U.S.,17 a tribal court’s jurisdiction over non-Indian parties is essentially limited to those “who enter consensual relationships with the tribe . . . through commercial dealing, contract, leases, or other arrangements.” The U.S. Supreme Court has made clear that a private contract qualifies as a consensual relationship, thus affirming that tribal courts have jurisdiction over non-Indian parties to contracts with tribes or tribal members.18 In Wong, Division I ruled that tribal “employment constitutes a ‘consensual relationship’ over which the tribe is presumed to retain authority.”19 While parties to tribal business or employment agreements might not be required to litigate in tribal court if the contract expressly permits adjudication in a non-tribal forum, it is doubtful that a federal court could assert federal question or diversity jurisdiction over a dispute arising out of such consensual relationships.20

State courts have jurisdiction over disputes arising from an auto accident occurring on a state right-of-way through the reservation,21 and in particular suits between non-Indians under U.S. Supreme Court precedent holding that such roads and highways are not Indian Country.22 Yet, jurisdiction over tort or contract lawsuits between non-Indians arising on or out of the reservation may lie in tribal court. Wong was a reservation-based employment tort suit between two non-Indian tribal employees (in which the tribal employer was not a defendant but was allowed to participate as amicus curiae). In affirming the King County Superior Court’s dismissal of the lawsuit for want of subject-matter jurisdiction, the Wong court explained:

In Williams v. Lee the United States Supreme Court considered whether a non-Indian merchant operating within the Navajo reservation could bring an action in state court to collect for goods sold on credit to members of the tribe. The court stated, ‘the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.’ The court noted that the tribe had strengthened and broadened its exercise of civil jurisdiction, which extended to suits by nonmembers. Under the circumstances, the court concluded, ‘[t]here can be no doubt that to allow the exercise of state jurisdiction here would undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the right of the Indians to govern themselves.’23

Division I concluded that the state’s imposition of jurisdiction into a tribal employment matter “would undermine the right of the tribe to govern reservation affairs.”24

Under the Washington common law, when “a dispute does not clearly arise either on or off a reservation, the essential question is whether state assumption of jurisdiction would interfere with reservation self-government.”25 In such a dispute, the Washington State Supreme Court has indicated that Washington’s policy interests can be protected only “up to the point where tribal self-government would be affected.”26 In short, do not hastily file the common slip-and-fall or breach-of-contract lawsuit in superior court, if doing so will impinge upon the tribe’s right to adjudicate such controversies and/or call into question an act attributable to the tribe as a governmental body,27 or your client might be granted an early exit from court by way of a rule 12(b)(1) motion to dismiss.

Principle #2(b) — Tribal Criminal Jurisdiction. While federal and state common law make clear that tribal courts do not have general criminal jurisdiction over non-Indian crimes occurring on tribal land,28 Indian courts do retain the power to exclude any unwanted person from the reservations over which they preside.29 Criminal offenses occurring in Indian Country30 by non-Indians are subject to prosecution by the state and federal governments, depending on the offense.31 Crimes committed on tribal land by non-Indians against non-Indians may be subject to state jurisdiction.32 Under the General Crimes Act, federal courts may assert jurisdiction over non-Indian crimes against Indians or tribal property on tribal land, and tribes may prosecute Indians for such crimes.33 While the federal government can prosecute enumerated “major crimes” committed by Indians in Indian Country, 34 a tribe may be able to concurrently prosecute Indians for offenses under the Major Crimes Act.35

Under Public Law 280, state and tribal courts share jurisdiction over non-major crimes committed by Indians in Washington Indian Country.36 The determination of whether the state and/or tribe can prosecute an Indian accused depends in large part upon the character of the tribal land on which the crime occurred, specifically whether the land is within or beyond the exterior boundaries of the reservation and is fee, trust, or allotted land.37 Although in 1963 the state assumed general criminal jurisdiction over Indians on tribal land in Washington, the state Legislature passed law in 1986 to facilitate the retrocession of such jurisdiction to certain tribes.38 Washington tribes, including the Colville and Tulalip, have retroceded from state jurisdiction and thereby restored tribal power to prosecute Indian crimes committed on their reservations.39 In sum, although a criminal defendant’s heritage and territorial issues are not typically germane to non-tribal criminal proceedings, such considerations could present the first line of defense to a crime committed in Indian Country.

Principle #3 — Tribal Sovereign Immunity. Washington tribes are generally immune from civil suit, whether in tribal, state, or federal court.40 Tribes are afforded immunity regardless of whether the alleged tribal act or omission took place on or off the reservation.41 Tribal sovereign immunity extends to agencies, entities, and enterprises, including gaming operations.42 Officials and employees of a tribe are afforded immunity protection when acting in their official capacity and within the scope of their employment.43 Tribal immunity shields tribes from suit for damages and requests for injunctive relief, including third-party subpoenas for the production of corporate witnesses or tribal documents.44 In 2002, the 9th Circuit Court of Appeals, in Bishop Paiute Tribe v. County of Inyo, reaffirmed that tribes are immune from subpoena enforcement in barring the execution of a search warrant to obtain confidential payroll records for tribal employees.45

Tribal sovereign immunity is a matter of subject-matter jurisdiction.46 For any tribunal to have jurisdiction to adjudicate a claim to be brought against a Washington tribe, the tribal sovereign or U.S. Congress must have clearly and unequivocally waived the tribe’s immunity.47 There is a strong presumption against waiver of tribal sovereign immunity.48 “Sovereign immunity is not a discretionary doctrine that may be applied as a remedy depending upon the equities of a given situation.”49 Therefore, before suing a Washington tribe, its business, and/or employees, counsel must first closely evaluate issues of sovereign immunity and waiver. Otherwise, your client’s suit could be promptly dismissed for want of subject-matter jurisdiction. Incidentally, in Wong, Division I did not reach the tribal amicus curiae’s sovereign immunity argument, because it concluded the superior court lacked jurisdiction to entertain the dispute.50

Principle #4 — Indian Child Welfare Act (ICWA). Jurisdiction over the adoption and custody of Indian children is governed by ICWA.51 The Washington Supreme Court has explained: “ICWA 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.”52 As King County Superior Court Commissioner Kimberly Prochnau observed when declaring her support for the inclusion of Indian law on our bar exam:

Failure to apply the Indian Children Welfare Act correctly can disrupt placement and lead to reversible error. Although there has been more education on the topic in the last few years, I still find many lawyers do not understand this act.

Under Public Law 280, state courts possess jurisdiction over the adoption and custody of Indian children in Washington. Notwithstanding, ICWA 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.”53

It is incumbent upon the party seeking the custody or placement of an Indian child to notify the child’s parent or Indian custodian, and the child’s tribe, of the pending proceedings and of their right of intervention.54 No such proceeding shall be held until at least 10 days after the child’s tribe receives notice.55 If actual notice of the proceeding and right to intervene is not properly provided to the child’s tribe, the state superior court’s adoption or custody decree could be reversed by a state appellate court and remanded for compliance with ICWA.56 ICWA contains several other procedural and substantive requirements that have been subject to a significant amount of state and federal judicial interpretation, all of which counsel must analyze relative to any Indian adoption or custody proceeding in Washington.

Our governors should be applauded for banding together to enact policy — in the face of some skepticism — that recognizes the pervasiveness of tribal sovereignty and jurisdiction in Washington, and will help ensure the legal protection of everyone in our state.

______________________________

Gabriel S. Galanda is an associate with the Seattle office of Williams, Kastner & Gibbs, PLLC. He 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 immediate past chair of the WSBA Indian Law Section. The views expressed in this article are his own.

NOTES

1  See “Across the USA,” USA Today, 8A, October 26, 2004; “Washington to address Indian law in bar exam,” The Oregonian, October 24, 2004; “Indian law will be added to bar exam,” Sara Jean Green, Seattle Times, B3, October 23, 2004; “Bar adds Indian law to exam,” Seattle Post-Intelligencer, October 23, 2004.

2  “Move invalidates long-ignored legal principles,” Spokesman-Review, B1, October 29, 2004.

3  See “Comprehensive Bar Admission Requirements 2004,” National Conference of Bar Examiners and the ABA Section of Legal Education and Admission to the Bar, at p. ix (www.ncbex.org/pub.htm).

4  See Tim Woolsey, “Should Indian Law Be Tested on the Washington Bar Exam?” De Novo, June 2004.

5  Worcester v. Georgia, 31 U.S. 515 (1832).

6  U.S. v. Kagama, 118 U.S. 375 (1886).

7  Williams v. Lee, 358 U.S. 217, 220 (1959).

8  119 Wn. App. 636, 645 (2004) (citing Montana v. U.S., 450 U.S. 544, 564 (1981)).

9  25 U.S.C. § 461.

10  25 U.S.C. § 477.

11  To be precise, tribal jurisdiction hinges upon whether the defendant is a tribal “member” or “nonmember” — the latter being a non-Indian who is not enrolled as a member of the tribe that seeks to assert jurisdiction. See U.S. v. Lara, Docket No. 03-107 (U.S. 2004). For sake of clarity, the terms “Indian” and “non-Indian” are used herein.

12  Although 18 U.S.C. § 1151’s definition of “Indian Country” (infra) by its terms relates only to federal criminal jurisdiction, the U.S. Supreme Court has recognized that the definition also generally applies to questions of civil jurisdiction. Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 527 & n.1 (1998). “Generally speaking, primary jurisdiction over land that is Indian country rests with the Federal Government and the Indian tribe inhabiting it, and not with the States.” Id. In particular, land held in trust for the benefit and use of an Indian tribe is Indian Country under section 1151. Oklahoma Tax Comm’n v. Potawatomi Indian Tribe, 498 U.S. 505, 511 (1991); State v. Cooper, 130 Wn.2d 770, 772 n.3 (1996).

13  William C. Canby, Jr., American Indian Law, P. 112 (3d Ed. 1998); Felix S. Cohen, Handbook of Federal Indian Law § 6 (Rennard Strickland, et al., ed., 1982 ed.). (“Jurisdiction over Indian matters is a function both of territory and of subject matter. A court’s jurisdiction may depend not only on the location of events but also on the race of the parties or the subject matter of the case.”)

14  28 U.S.C. § 1360(a).

15  See generally Cordova v. Holwegner, 93 Wn. App. 955 (1999).

16  See Williams v. Lee, 358 U.S. 217, 223 (1959); Sanders v. Robinson, 1988 U.S. App. LEXIS 17047, *4-5 (9th Cir. 1988); In re Adoption of Buehl, 89 Wn.2d 649, 654 (1976).

17  450 U.S. 544 (1981); Thomsen v. King County, 39 Wn. App. 505 (1985).

18 See Strate v. A-1 Contractors, 520 U.S. 438, 457 (1997) (a business contract qualifies as a “consensual relationship”).

19  119 Wn. App. at 640.

20  See Peabody Coal Co. v. Navajo Nation, 373 F.3d 945 (9th Cir. 2004) (dismissed complaint against the Navajo Nation seeking enforcement of an arbitration agreement for lack of federal question jurisdiction); Canby, supra, at 207 (“An Indian tribe that is not incorporated is not a citizen of any state and cannot be sued in federal court on the basis of diversity.”). Even if a tribe could be sued in diversity (see Gaines v. Ski Apache, 8 F.3d 726, 729 (10th Cir. 1993)), a federal court might defer jurisdiction to a tribal court when the dispute at issue is a “reservation affair” or arose on or out of the reservation. See Crawford v. Genuine Parts, Co., 947 F.2d 1405, 1407 (9th Cir. 1991); Stock West Corp. v. Taylor, 942 F.2d 655, 661 (9th Cir. 1991), rehearing granted, 856 F.2d 207, on rehearing, 964 F.2d 912, aff’d in part, vacated in part (9th Cir. 1992).

21  See McCrea v. Denison, 76 Wn. App. 395 (1994).

22  See Strate, supra.

23  119 Wn. App at 643 (citations omitted).

24  Id. at 644.

25  Maxa v. Yakima Petroleum, 83 Wn. App. 763, 769 (1996) (citing Williams v. Lee, supra).

26  Powell v. Farris, 94 Wn.2d 782, 786 (1980).

27  R.J. Williams Co. v. Fort Belknap Housing Authority, 719 F.2d 979, 983 (9th Cir. 1983), cert. denied, 472 U.S. 1016 (1985).

28  Oliphant v. Suquamish Tribe, 435 U.S. 191 (1978); State v. Schmuck, 121 Wn.2d 373 (1993).

29 Hardin v. White Mountain Apache Tribe, 779 F.2d 476 (9th Cir. 1985).

30  The term “Indian country” is currently defined at 18 U.S.C. § 1151, which in pertinent part provides:

‘Indian country’ . . . means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government .  .  . (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

31  Schmuck, supra.

32 New York ex rel Ray v. Martin, 326 U.S. 496 (1946); Solem v. Bartlett, 465 U.S. 463 (1984).

33 18 U.S.C. § 1152; Williams v. U.S., 327 U.S. 711 (1946).

34  18 U.S.C. § 1153; Department of Labor and Industries v. Sargeant, 27 Wn. App. 1 (1980).

35  See Canby, supra, at 160-61.

36  RCW 37.12.010.

37  Cooper, supra.

38  RCW 37.12.021, .100.

39  See Jennifer Sullivan, “Moving up in the ranks,” Seattle Times, March 4, 2004.

40  Santa Clara v. Martinez, 436 U.S. 49, 58 (1978); U.S. v. Oregon, 657 F.2d 1009, 1013 (9th Cir. 1981); North Sea Products, Ltd. v. Clipper Seafoods Co., 92 Wn.2d 236 (1978); Colville Tribal Enterprise v. Orr, 5 CCAR 1 (Colville Confederated 1998).

41  Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 754 (1998).

42  See Central Machinery Co. v. Arizona Tax Comm’n, 448 U.S. 160, 164 n.3 (1980).

43  U.S. v. Oregon, 657 F.2d at 1013 n.8.

44  Catskill Development, LLC v. Park Place Entertainment Corp., 206 F.R.D. 78, 86-88 (S.D.N.Y. 2002).

45  275 F.3d 893, 902-904 (9th Cir. 2002), vacated and remanded on other grounds, 538 U.S. 701 (2003); see also U.S. v. James, 980 F.2d 1314, 1319-20 (9th Cir. 1992), cert. denied, 510 U.S. 838 (1993).

46  See McClendon v. U.S., 885 F.2d 627, 629 (9th Cir. 1989).

47  Santa Clara v. Martinez, supra; Colville Tribal Enterprise v. Orr, supra.

48  DeMontiney v. U.S. ex rel. Dept. of Interior, 255 F.3d 801, 811 (9th Cir. 2001).

49  Chemehevui Indian Tribe v. California State Bd. of Equalization, 757 F.2d 1047, 1052 n.6 (9th Cir. 1985).

50  119 Wn. App. at 644 n.27.

51  25 U.S.C. § 1901, et seq.

52  Matter of Adoption of Crews, 118 Wn.2d 561, 567 (1992); 25 U.S.C. § 1902.

53  25 U.S.C. § 1911(c).

54  25 U.S.C. § 1912(a); Matter of Welfare of M.S.C., 86 Wn. App. 127, 133-34 (1997).

55  25 U.S.C. § 1912(a); In re Dependency of Colnar, 52 Wn. App. 37, 39 (1988).

56  Matter of Welfare of M.S.C., 86 Wn. App. at 134-35.

Back to table of contents >>