New status for Indian law: It'll be on the bar

If someone slips and falls in an Indian casino, who has jurisdiction: tribal, state, or federal courts? Can state officials chase poachers onto a reservation without permission? What legal issues arise in the adoption of a native American child?

Many lawyers – let alone most American citizens – can't answer those questions. But in a state like New Mexico, dotted with 23 pueblos and tribes, these are critical questions as the newly wealthy Indian population becomes an integral part of the economic, political, and social scene.

That's why the state recently became the first in the country to add the subject of federal Indian law to its bar exam, adding credibility and respect to a community that has often been ignored.

"Indian and non-Indian communities continue to become more and more intertwined, changing the face of how lawyers do business," says William Bluehouse Johnson, an Isleta Pueblo judge and a supporter of including the subject on the exam.

Most of the 450 recognized US tribes have different culturally traditional justice systems. But those who take the New Mexico bar exam will need to know only federal Indian law; that is, laws that have been developed through treaties and case law since the early 1800s, which outline the relationship between tribes and the federal government and, indirectly, the states. These laws, based on the sovereignty of the tribes, tend to give native Americans stronger standing than do state and federal law.

New Mexico may be a model of what's to come. Tribes are becoming economic forces as a result of casino businesses – booming enterprises on sovereign Indian reservations. With their profits, tribes are diversifying – and states are realizing it's impossible to avoid the jurisdictional issues that are arising. The University of Montana law school, for instance, recently invited the New Mexico Supreme Court chief justice to speak about the new bar requirement in hopes of getting the subject added to its state exam.

"Most of what has been taught at law schools up until now has been federal and state law," says Kenneth Bobroff, associate law professor at the University of New Mexico in Albuquerque (UNM). "But in this modern economy where tribes play an increasingly important economic role – in large part due to gaming – a good lawyer has to know Indian law." In fact, he adds, Indian law has been so overlooked that most of his first-year students think there are only two sovereign entities: state and federal governments. But tribal government is a third.

The UNM law school has long been on the forefront of Indian law, offering more than a dozen classes on various subjects. But those have always been considered electives. Now, with the inclusion of Indian law on the exam as early as next February, all students will need to learn these subjects.

Often, lawyers simply don't recognize that a case has native American connections. There are plenty of horror stories of cases bungled because a lawyer tried to apply state law to an Indian issue. One example is the business that entered into a contract with a New Mexico tribe. A dispute arose over the contract, and the lawyer for the company, unaware contracts with entities based on sovereign Indian land must be filed in either tribal or federal court, filed his case in state court. It was thrown out. The attorney learned he couldn't file it in federal court, either, because the contract didn't include a waiver of sovereign immunity allowing the tribe to be sued. If required to have a basic understanding of Indian law on the bar exam, lawyers would know enough to at least recognize a tribal issue and get more help with it, reasoned state officials.

"Indian law issues confront lawyers on a daily basis around the state, and an astounding number are ignorant about these laws," says Mike Gross, a Santa Fe lawyer and a member of the New Mexico Board of Bar Examiners. After the board heard the proposal earlier this year, he says, it voted unanimously to recommend it to the state Supreme Court for approval.

"People who file a claim should be confident that their lawyers know something about jurisdiction before things get too crazy," says Calvin Lee, a UNM law student and a Navajo who wrote the proposal for the new bar subject. He'll take the exam in July – the last time it'll be given without the new section on Indian law. While that would be no sweat, he's glad he won't have to face the second new subject: federal income tax.