Should Indian law be on bar exam?

By Sara Jean Green
Seattle Times staff reporter

JAMES BRANAMAN / THE SEATTLE TIMES Attorney Gabe Galanda has led a small collective of attorneys, both Indian and non-Indian, in pushing Washington's bar association to follow New Mexico's lead in adding Indian law as a topic on the state bar exam.

E-mail this article Print this article Search archive Most read articles Most e-mailed articles

The resolution — proposed by a group of American Indian lawyers and endorsed by both U.S. district attorneys in Washington, the state attorney general, county prosecutors, judges and law school deans — is to be debated and decided at a meeting in Richland this afternoon.

Though there appears to be little or no organized opposition, there is a handful of legal leaders who question the ability to test such a complex body of law, and wonder if it's prudent to add another topic to an exam that already takes three days to take.

Today's WSBA Board of Governors vote could potentially have practical, symbolic and even historic implications for attorneys here and elsewhere. Should the resolution pass, Washington would become the second state in the nation to demand that its aspiring lawyers grasp the basics of tribal sovereignty and the spinoff legal issues that color every interaction with Indian Country.

	THE SEATTLE TIMES Gabe Galanda is a Seattle attorney and past chair of the state bar association's Indian Law Section.

Ever since New Mexico decided to test Indian law on its bar exam in 2002, Gabe Galanda has led a small collective of attorneys, both Indian and non-Indian, in pushing Washington's bar association to follow suit. Legal leaders in other states — particularly Oregon and Idaho, where a reciprocity agreement with Washington allows cross-licensing of lawyers — are keenly interested in how today's board vote plays out, said Galanda, an attorney at Williams, Kastner & Gibbs in downtown Seattle.

Galanda's hope is that the first wave of new lawyers would be tested on Indian legal issues on Washington's 2007 exam.

"Somebody has to be a leader, and we should be," said W.H. "Joe" Knight, dean of the University of Washington's law school. "One can't live in the Pacific Northwest without recognizing the impact of Native American law."

The emergence of Indian gaming over the past decade — and the parallel emergence of a generation of young Indian lawyers — is now forcing the issue of whether Indian law is prevalent enough that anyone wanting to practice here should have a minimum understanding of the laws that govern dealings with tribes and tribal members.

Washington's Indian tribes contribute upward of $1 billion annually to the state economy, employ more than 15,000 people and occupy 3.2 million acres of land, Galanda said. Compared to maybe 30 other states, Washington's population of 153,000 American Indians and Alaska Natives is small.

But with 29 federally recognized tribes, Washington has one of the country's highest concentrations of individual Indian nations.

Out of the state's 23,000 lawyers, roughly 60 to 70 are Indian.

Whether prosecuting an Indian murder suspect, arranging the adoption of an Indian child, or facilitating business agreements with tribes, proponents of the bar resolution say Indian law intersects with most every other area of law, from constitutional law to environmental and family law. Tribes' growing economic and political clout has made interactions between Indians and non-Indians so ubiquitous that practically every attorney in the state now can expect to deal with some aspect of Indian law in his or her career.

"The whole issue of tribal sovereignty and the relationship between a tribe, based on treaty, and the federal government," and how that relationship in turn affects relations between tribes, states and counties, is something many people don't fully understand, said King County Prosecutor Norm Maleng.

"Fifteen, 20, 30 years ago, federal Indian law jurisdiction was not really a part of a broad practice area," he said. "Today, it has become a broad practice area. It's kind of in the mainstream right now."

There's also an equity issue involved, said John Sledd, a non-Indian lawyer who has practiced Indian law almost exclusively for 25 years.

He cited a 2001 study that showed three-quarters of the state's 28 volunteer legal-aid programs routinely refuse to take "Indian law cases" because those attorneys "don't want to risk messing things up for the client."

"Our ignorance is having a discriminatory impact on Indian people and anyone else subject to tribal or Indian law," said Sledd. "... Most lawyers are simply ignorant of the rules of federal Indian jurisdiction, and as a result, they're not capable of providing competent legal counsel."

How to test a lawyer's knowledge, though, is complex, said Frank Slak, chairman of the WSBA's Law Examiners Committee, the body responsible for writing the bar exam. Slak doesn't consider himself an opponent, but worries about the practicalities of creating a question from such a vast body of law that can be adequately analyzed "in 45 minutes and 64 lines" — the time and space given for each of the exam's 24 essay-style questions.

"We generally don't test any federal law on our exam, so it would be a substantial change," he said.

WSBA Board of Governors President Ron Ward, who will vote only in the event of a tie, said he doesn't think principles of Indian law are "unduly complex" for testing purposes.

"I assuredly believe it can be done, but the ultimate question is whether it should be done," Ward said cautiously, explaining he didn't want to say anything that could be construed as usurping "the prerogative" of the board's 12 voting members.

"But I will say this is an issue that has been fomenting for an appreciable amount of time," he said. "I'm very conscious of the stakes involved here."

Sara Jean Green: 206-515-5654 or sgreen@seattletimes.com

Copyright © 2004 The Seattle Times Company

E-mail this article

Print this article

Search archive

More local news headlines...