Northwest Indian Law & Business Advisor : Northwest Indian & Tribal Lawyer & Attorney : Williams Kastner Law Firm : Tacoma, Seattle, Portland

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The Washington State Bar Association Board of Governors has been asked to consider adopting the Uniform Bar Examination (UBE), on shortened time, casting doubt on the future of the current Washington State-specific admissions exam. It appears that an October 13, 2009 internal WSBA report urging reform of Washington’s bar exam, could be acted on by the Board as early as January 2010.

The last substantive change to the exam, namely the Board’s decision in October 2004 to add federal Indian jurisdiction to the test, culminated from 2 ½ years of deliberations amongst and between various WSBA stakeholders. With that in mind, the proposed reform effort seems to be moving too quickly to allow time for the Board and entire state bar to fully consider how the reform might impact, e.g., Washington’s three law schools; civil legal aid in our state; the diversification of our state bar, and above all, the competence of Washington lawyers and the integrity of our profession.

In 2004, the BOG considered all of these questions relative to Indian law, concluding its addition would positively impact, inter alia, the provision of indigent legal aid, the diversification of our bar, and lawyer competence. See “Bar None! The Social Impact of Testing Federal Indian Law in Washington,” Washington State Bar News, August 2007. By letter to the WSBA Board and local law school deans, a slower, more deliberate bar exam reform process has been urged, which will allow these types of issues to be fully vetted, with the full participation of all interested WSBA parties.

If some form of local bar exam reform is eventually believed to be in the Washington public’s best interest, at least one state-specific day of testing should be maintained, and Indian law should either be left as its own topic or included in state-centric civil procedure, contracts, torts and/or other topics. As University of New Mexico Law School Professor Gloria Valencia-Weber writes: “Ultimately, each state, its history, and its contemporary circumstances provide the basis for why familiarity with Indian law can strengthen the knowledge that licensed attorneys use to serve their clients and the public interest.” In 2004, the WSBA decided that Washington’s history and contemporary circumstances, including historical and modern tribal-state relations, compelled the addition of Indian law to our exam. We can ill afford to lose sight of Indian law as part of that which makes us the Washington State Bar Association.

For information about efforts nationwide to include Indian law on state bar exams, visit Turtle Talk.
 

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The free market that is the Internet is a primary universal gateway for commercial transactions, including those in Tribal economies. The Internet provides access to Indian Country patrons and customers and may be the only way to reach rural Indian businesses. The free market created and maintained by the Internet could soon be a federally regulated digital environment where rates will be charged for data transferred on the Internet and restricted network access.

Domestic telecommunications policy within the United States has until now encouraged the largely unregulated expansion and modernization of Internet systems and applications to allow ready public access for commercial and other purposes. Yet now, telecommunications companies are stirring up a policy debate that could allow these entities to charge rates for data transmission based on the bandwidth used. Essentially, users would be forced to pay for access for all data transmitted via the Internet. Telecommunications companies are advocating a tiered pricing system, based on the bandwidth being used--a strategy which could lead to segregated pricing based upon content of the data being accessed or type of users accessing the data. The concept of pricing based upon content and users could be the next battleground in strategic competition for access to the broad markets provided by an open Internet.

The counter position is known as net neutrality--the advocates for which hold the position that the Internet must remain open and accessible. Net neutrality proponents fear that segregation of Internet data or access will impede a free market. In particular, they predict severe negative commercial effects if Internet access is regulated by the federal government, restrictions are placed on network performance by telecommunications providers, and/or users are assessed connection speed charges, Universal Service charges, or tiered charges based upon data or content transmission.

On October 22, 2009, the Federal Communications Commission entered the debate and issued a proposed rulemaking regarding Internet access. Under the federal Communications Act of 1934, as amended by the Telecom Act of 1996, Congress detailed an Internet policy rooted in preserving and further developing the vibrant and competitive free market that exists via the Internet. Through its proposed rulemaking, however, the FCC could set regulatory standards for, among other things, various pricing for access to the Internet.

In light of this debate, which will have enormous ramifications, tribes and businesses should begin to formulate strategic economic development plans that call for the creation of Internet Service Providers, Exchange Service Providers, broadband capabilities, and cable television ventures providing services to Indian communities and businesses. Before broadband capability has even reached all of Indian Country, tribal access to the Internet–and the commercial opportunity it brings to reservations–could soon be significantly restricted by federal policy and by telecommunications providers who seek to control the Internet. That is, unless tribal governments and businesses focus on this debate and begin exercising Indian Country’s political muscle. Tribes must actively monitor the FCC’s proposed rulemaking and the overarching net neutrality policy debate; better yet, tribes should comment on the rulemaking, which is available on the FCC’s web-site.

Indian Country can ill afford to be left on the other side of the digital divide.