INDIAN LAW

Indian Law Concerns Tens of Thousands of Us Every Day

Indian law focuses on the intersection of federal, state, and tribal law. These days, it touches the lives of hundreds of thousands of people in the State of Washington, both tribal members and non-tribal members.

For example, if you go to a casino and get injured, or if you work at a casino and get fired, injured, sexually harassed, or become otherwise aggrieved, and you want some kind of compensation, you will need an attorney who practices Indian law.
As another example, if you are a tribal member and you marry, work, or have children outside your tribe, or vice versa, you will inevitably create a host of Indian law issues.

To address these issues, you need an experienced Indian law practitioner. Seattle is home to a number of highly qualified Indian law practitioners, but all of them represent the tribes. I am one of the few in the area willing to represent a tribal member or a non-tribal member in a dispute against a tribe.
I am a member of the following tribal bars: Muckleshoot, Nisqually, Nooksack, Puyallup, Sauk-Suiattle, Snoqualmie, Tulalip, and Yakama. I am willing to join other tribal bars as the need arises.

CONTRACTS WITH INDIAN TRIBES

Doing Business in Indian Country Can Be Lucrative and Perilous

Thirty years ago, there probably wasn’t much point in doing business with an Indian Tribe because the Tribe probably didn’t have much money. That began to change after 1987 when the U.S. Supreme Court decided that Indian Tribes could operate casinos on tribal land and that the state couldn’t interfere.

Since then, Indian Gaming has grown into big business. A study in 2006 found that Indian Casinos contributed $3.2 billion to the Washington economy in 2004. That number appears to be increasing dramatically every year.

Because of Indian Gaming, non-Indian companies in the construction, resort management, and retail businesses stand to make money in Indian Country. However, enforcing a construction contract or other agreement with an Indian Tribe is not a simple state-law contract matter.
A boilerplate construction contract with an Indian Tribe will probably not be enforceable in state, federal, or even tribal court. Therefore, if the project goes south, you will probably be without a remedy.

The solution to this problem is to negotiate a contract that specifically addresses jurisdiction and sovereign immunity long before any dispute arises. One way to address these issues is to stipulate to arbitration.

The arbitrator, or, at least, the organization or business providing the arbitrator, should be specified. The scope of the arbitrator’s powers should also be specified. This contract, including the arbitration clause, would be ratified by a resolution from the Tribal Council.

ENROLLMENT

Eligibility for Enrollment Is a Matter of Tribal Law

Whether or not you or your child is eligible for enrollment in a particular tribe depends primarily on the tribe’s enrollment ordinance. It may also depend on politics. The two basic criteria in most enrollment ordinances are blood quantum and lineage.

The candidate for enrollment must have a certain amount of “Indian” blood, usually one eighth. In addition, a percentage of that blood often must be from the candidate’s own Tribe.

In terms of lineage, usually the candidate must be the biological issue of an enrolled member. In the alternative, in some tribes, the candidate may only need to prove that he is the issue of someone who was a de facto member of the tribe, even if, for some reason, the tribal member was not officially enrolled.

Unfortunately, whether or not a Tribe will accept you or your child for enrollment may depend on the current political climate and the relative generosity of the Tribe as much as the ordinance.

If the Tribe is affluent but tribal income is relatively fixed, the tribal council may not want to divide the tribal pie any further and therefore may try to exclude you. However, if the tribal pie is quite small to begin with, dividing it further won’t make much of a difference and the tribal council may not care one way or another.

Likewise, if the tribal council feels threatened by you or your family, you may be excluded for extra-legal reasons. Whether you can beat these reasons in tribal court will depend to a large extent on your facts but it may also depend on whether the tribal court is properly insulated from tribal politics.

EMPLOYMENT DISPUTES

Your Employment Dispute Will Be Governed by Tribal Law

Employment disputes in Indian Country are typically a matter of tribal law, even if the employee is not a tribal member. Attempts to try employment disputes in state or federal court almost always fail.

Whether tribal court will hear your employment dispute, therefore, depends on tribal law.

Most local tribes have not given their courts authority to hear employment disputes. Therefore, the primary source of law for most employment disputes is the employee handbook.

The handbook will often describe a non-judicial process for resolving an employment complaint. At Muckleshoot, for example, the handbook, at least in theory, gives the employee the right to have a hearing. The hearing is heard by a randomly selected committee of three employees and conducted by someone from Human Resources.

The employee may present witnesses and cross examine the Tribe’s witnesses. However, the employee lacks fundamental due process protections such as the power to subpoena witnesses who do not wish to attend the hearing and the power to subpoena documentary evidence.

In addition, the committee members may be reluctant to find in favor of the employee for fear of losing their own jobs.

CODE

Tribal Code Is Critical to Preserving Sovereignty and Developing the Reservation Economy

The paramount concern of perhaps every tribal government is tribal sovereignty. Likewise, a paramount concern of perhaps every business person is certainty. By codifying and publishing tribal law and making it available to the public, a tribal council can help address both of these concerns.

A tribal code should include all of the ordinances, resolutions, other sources of written law, and any standardized, but unwritten procedures followed by tribal government or the tribal court. Laws on the same subject, for example, civil procedure, should be organized into titles. The numbering system should be expandable so that new ordinances can be easily added.

All the non-law parts of the ordinance or resolution should be deleted and the remaining provisions should be copy-edited. The legislative history of each section in the code should be summarized in a consistent and systematic manner at the end of each section. The resulting code should be published on the tribal website.

Once the existing law is codified, the codification process per se is over. However, to reap the full benefits of codification, more should be done. The codifier should identify any gaping holes in the code that have prevented the assertion of tribal jurisdiction and the development of the tribal code, for example, a long-arm statute, and then draft new ordinances filling these gaps.

Next, the codifier should draft new legislation addressing current economic and political concerns, for example a tribal commercial code modeled on the uniform commercial code. Obviously, any new legislation must be presented to the tribal council and enacted before it can become part of the code.

TRIBE AS DEFENDANT

Suing an Indian Tribe May be Tricky but Still Worthwhile

If you have been injured at an Indian Casino, either as a patron or a worker, I might be able to help. Suing an Indian Tribe is tricky. Many, but certainly not all, tribes in this state have promulgated a limited waiver of sovereign immunity, meaning that you can sue them, but only on their terms.

Damages are typically limited to the limits of the insurance policy. Attorney’s fees and pain and suffering may also be limited. Many tribes also have a formal notice procedure and shortened statute of limitations. Some tribes also do not allow a jury trial.

Civil rights actions against Indian tribes under 42 USC 1983 are probably not going to work because an Indian tribe and/or official is probably not going to be acting under the color of state law. Employment discrimination claims based on Federal law may not work either, because the Civil Rights Act of 1964 doesn’t apply to Indian tribes.

However, the tribe itself may have a policy against workplace discrimination and other federal law may apply. In addition, personal injury claims probably will work. You might not get the same amount of money that you would get in state court, but it is probably still worth filing the claim.

SOVEREIGN IMMUNITY

Sovereign Immunity Bars Most Suits Against Indian Tribes

Most civil suits against Indian tribes are precluded by sovereign immunity. The doctrine of sovereign immunity traces its origins to early English common law when all authority derived from the King or the Queen. Since the King authorized the courts to hear cases on his behalf, the courts were without authority to hear cases against the king or his agents.

The English colonists brought this doctrine with them to the new world and applied it to the three sovereigns they recognized: the federal government, the states, and the various Indian tribes. Thus, like the old English kings, the American sovereigns cannot be sued without their consent.

Congress began to waive sovereign immunity for contract claims against the federal government before the Civil War. The modern waiver of sovereign immunity for most types of tort claim was promulgated in the 1950s. Likewise, most, if not all, state legislatures have waived sovereign immunity for most contract and tort claims against state governments. Most Indian Tribes, however, have not waived sovereign immunity.

Therefore, when analyzing a potential claim against an Indian tribe, assume that sovereign immunity applies, then look for an exception. The only two exceptions are: 1) Congressional abrogation; or 2) waiver by the Tribe.

Congressional abrogation must be explicit. It cannot be implied. Waiver by the Tribe must also be explicit and it must be waived by someone with proper authority. For example, the tribal attorney is probably not authorized to waive sovereign immunity. The most authoritative waiver would be a resolution duly promulgated by the tribal council.

Although it may seem as if it violates rule number one, the most common example of Congressional abrogation of sovereign immunity is a federal law of general applicability, i.e. any federal statute that applies to everyone and does not explicitly exclude Indians.

The most common example of a waiver by a tribe is probably an arbitration clause in a contract. In addition, some Tribes have waived sovereign immunity for a limited type of tort claims. The waiver is usually limited to the coverage limits of the tribal insurance policy.

INDIAN LAW GLOSSARY

CODE

EMPLOYMENT DISPUTES

ENROLLMENT

The candidate for enrollment must have a certain amount of “Indian” blood, usually one eighth. In addition, a percentage of that blood often must be from the candidate’s own Tribe.

FEDERALLY RECOGNIZED INDIAN TRIBE

Indian tribes are subject to the plenary power of the U.S. Congress. Congress, acting through the U.S. Bureau of Indian Affairs, has determined which tribes have a legal right to exist and therefore receive services and which do not. The current list contains approximately 564 tribes. The U.S. has a fiduciary duty to protect the trust resources of all federally recognized Indian tribes. If a tribe is not on the list, it may apply for federal recognition, but the success rate is not high.

INDIAN CHILD WELFARE ACT

The Indian Child Welfare Act (“ICWA”) is a forum selection statute. It determines whether your Indian child custody dispute will be heard in state or tribal court. ICWA usually applies in the context of a custody dispute between an Indian guardian or parent who has had de minimus contact with the child for many years and the child’s non-Indian foster parents or guardians.

INDIAN LAW

Indian law focuses on the intersection of federal, state, and tribal law. These days, it touches the daily lives of hundreds of thousands of people in the State of Washington, both tribal and non-tribal.

JURISDICTION

Indian law lives in the peaks and valleys of three different sovereigns: the United States, the State of Washington, and the tribe. Per the doctrine of discovery, conquest, and the U.S. Constitution, the United States is the supreme sovereign.

SOVEREIGN IMMUNITY