A Guide to Indian Law in Washington

Over the past decade, the 29 federally-recognized Indian tribes in†the State of Washington have become major players in the State's economy.†Tribes are aggressively creating and operating new businesses in the areas of†real estate development, banking and finance, media, telecommunications,†wholesale and retail trade, tourism, and gaming. Consider these facts:†

Washington tribes occupy more than 3.2 million acres of reservation lands.†

Washington tribes currently employ nearly 15,000 Indian and non-Indian†employees. By comparison, Microsoft employs 20,000 Washingtonians.†

Washington tribes paid over $5.3 million dollars to the State in employment†taxes, in 1997 alone.†

By 2002, Washington's twenty-one gaming tribes generated $648 million in†revenue, up from $620 million in 2001. 2

†A corollary to the dramatic increase†in tribal economic development is the†increased interaction of tribes and†non-Indian citizens who seek†business, employment, or recreation†on Indian reservations. In turn, legal†matters between Indian tribes and†non-Indians continue to increase.†

As Indian law issues now†intersect both litigation and†transactional practices, and virtually every niche of law, 3 every attorney in Washington must be cognizant of general Indian law principles and stand prepared to answer common Indian law questions. Likewise, all tribal and county decisionmakers should understand the contours of Indian law, particularly issues of civil and criminal jurisdiction. For that reason, I share with you, participants in the 2nd Annual†Washington State Tribal/County Criminal Justice Summit, some legal principles that govern†relations between Indians and non-Indians in Washington, in hopes that you and counsel for your tribe or county will continue the dialogue on such critical issues.

Question: "What is Tribal Sovereignty?"

Answer: Indian tribes are "distinct, independent political communities, retaining their original natural rights" in matters of local self- government.4 Although no longer "possessed of the full attributes of sovereignty," tribes remain a "separate people, with the power of regulating their internal and social relations."5 In short, Indians possess "the right . . . to make their own laws and be ruled by them."6†

Much like the State government, tribal governments are elaborate entities, consisting of executive, legislative, and judicial branches. The office of the tribal chairman (like that of the state governor) and the tribal council (the state legislature) operate the tribe under a tribal constitution and code of laws.

Question: "Are Tribal Courts Different than State and Federal Courts?"

Answer: Yes. Although Washington's 25 tribal courts are modeled after Anglo-American courts,7 Indian courts are significantly different.8 Tribal judges, who are often tribal†members, are not necessarily lawyers.†

Tribal courts operate under the tribes' written and unwritten code of laws. Most tribal†codes contain civil rules of procedure specific to tribal court, as well as tribal statutes and†regulations. Such laws outline the powers of the tribal court and may set forth limitations on†tribal court jurisdiction. 9†

A tribe's code also includes customary and traditional practices, which are based on oral†history and may not be codified in tribal statutes and regulations.10 Tribal judges consider†testimony regarding tribal custom and tradition from tribal elders and historians, who need not†base their opinions on documentary evidence as may be required by state and federal evidentiary†rules.†

Tribal courts generally follow their own precedent and give significant deference to the†decisions of other Indian courts. However, because there is no official tribal court reporter 11 and†because not all tribal courts keep previous decisions on file, finding such caselaw can be†difficult.12 The opinions of federal and state courts are persuasive authority, but tribal judges are†not bound by such precedents. Nevertheless, Washington's state courts extend full faith and†credit to valid tribal court orders,13 and federal courts grant comity to tribal court rulings.14†

Before handling a matter in tribal court, counsel must appreciate the character of tribal†courts, pay careful attention to tribal laws and statutes, and understand the fundamental†differences between tribal courts and state and federal courts.†

Question: "Can Tribes Be Sued for Damages or Equitable Relief?"†

Answer: Probably not. Like other sovereign governmental entities, tribes enjoy common†law sovereign immunity and cannot be sued:15 An Indian tribe is subject to suit only where†Congress has "unequivocally" authorized the suit or the tribe has "clearly" waived its immunity 16†(for examples of waiver, see discussion below regarding tribal insurance). There is a strong†presumption against waiver of tribal sovereign immunity.17†

The doctrine of sovereign immunity shields tribes from suit for monetary damages and†requests for declaratory or injunctive relief. 18 However, tribal government officials who act†beyond the scope of their authority are not immune from claims for damages.19†

Tribes are also immune from the enforcement of a subpoena, e.g., to compel production†of documents.20 Last year, the Ninth Circuit Court of Appeals, in Bishop Paiute Tribe v. County†of Inyo, 275 F.3d 893 (2002), certiorari granted, 123 S. Ct. 618, reaffirmed that tribes are†immune from subpoena enforcement, in barring the execution of a warrant to obtain confidential†payroll records for casino employees. The Supreme Court heard argument on Bishop Paiute in†early 2003 and, though expected by many tribal advocates to reverse the Ninth Circuit, the Court†remanded the case for reconsideration of other issues. As such, Washington tribes remain†immune from subpoena enforcement and county law enforcement cannot use a superior court's†subpoena power as a means to obtain casino records.†

Tribal immunity generally extends to agencies of the tribe 21 such as tribal casinos,†resorts, and other business enterprises. As many Washington citizens flock to tribal casinos,†slip-and-falls and other tort claims arising on tribal reservations have increased. Nevertheless,†courts routinely dismiss personal injury suits against tribes for lack of jurisdiction. 22†

Therefore, in considering whether to sue a tribe on behalf of an injured party, counsel†must closely evaluate issues of sovereign immunity and waiver. Unless a plaintiff can show†clear evidence of tribal waiver or unequivocal Congressional abrogation, a judge will simply†dismiss any suit filed against a tribe for damages for lack of subject matter jurisdiction.†

Question: "Can Tribes Be Sued to Enforce a Contract?"†

Answer: Probably not. Tribes retain immunity from suit when conducting business†transactions both on and off the reservation. 23 Generally, a tribe can only be sued in contract if†the agreement explicitly waived tribal immunity;24 a waiver will not be implied.25 Nonetheless,†the U.S. Supreme Court recently...