Turtle Talk

From the Washington State Bar News:

Representing My People

by Jack Fiander

This article is intended to be helpful to my fellow attorneys who may find themselves in the position of representing my people in personal-injury or wrongful-death cases. I also hope that the information here is helpful to my fellow tribal members in Washington state who may find themselves the victim of a tort or who have experienced personal injuries or a wrongful death in the family.

Here in the Pacific Northwest, my people live quietly among you in large numbers. Therefore, it is not unlikely that at some point in your legal career you will have the opportunity to represent them. This has been implicitly recognized since 2005, when the Board of Governors of the Washington State Bar Association made testing on the topic of federal Indian law part of the curriculum of the Washington State Bar examination. According to the Washington State Governor’s Office of Indian Affairs, there are no fewer than 29 federally recognized tribes in Washington. According to the 2000 U.S. Census, 164,481 residents of the state of Washington identify themselves as Native American or Alaskan Native.

I realize that it can raise uncomfortable issues such as discrimination or stereotyping by generalizing about my people. By the same token, I shall undoubtedly receive some opprobrium for sharing information regarding certain cultural beliefs with those outside the tribe. On the whole, however, I have come down on the side that it is important to the welfare of my people that I try to convey the important considerations which you should take into account when calculating damages in cases involving tribal clients, because they are easily overlooked.

First of all, you should be aware that many of my people (including me) are very big on compliance with the Creator’s will. Oftentimes, for example, a feeling comes to me such that I cannot explain why I must drop everything I am doing in order to attend to an unexpected task. I try to explain to my wife that something is telling me that I must do this thing. I don’t know why; I am just supposed to do it. It is the Creator’s will.

When one of my people dies, usually that, too, is often considered to be the result of the Creator’s will. That is that. The period of mourning is held, and after that, the rest of their family gets on with their lives. Even if the injury or death was another’s fault or happened during the course of employment, no insurance or administrative tort claim is made and no lawsuit gets filed. Sadly, in my 25 years as a member of the Washington State Bar Association, I have found this to be the general rule.

Although the establishment of tribal gaming, with its resultant jobs and revenues, has given a boost to historically bleak tribal economies, as a general rule, most of my people have been too poor for most of their lives to have much of a handle on the concept of insurance. They were happy just to have an automobile that ran half or more of the time. Insurance was a luxury. Consequently, my people leave a lot of money on the table because between the concept of the Creator’s will and the foreign concept of insurance, the thought of filing an insurance claim, a federal tort claim, or suing the party at fault is not part of the culture they grew up with.

So the starting place sometimes must be to explain to my people that, by pursuing a claim against another party, they are not doing anything to harm anyone, nor are they going against the Creator’s will. One thing you can do is tell them that restitution is part of their culture. For example, my great-great-grandfather paid much restitution to my great-great-great-grandfather for the privilege of being allowed to marry his daughter. Similarly, I once saw an 1878 entry in the U.S. Indian Agent’s diary for the Yakama Reservation informing the Justice Department that the Agent did not plan on requesting the United States to prosecute one of my people for murder who had killed another, because the Tribal Council had already met on the matter and ordered him to pay the victim’s family in horses.

Once you have explained to my people such that they agree to pursue a claim and not merely walk away from an injury or death uncompensated, you need to make sure that, in fashioning your claim, you are not also leaving many of their damages unconsidered and uncompensated. There are many “special” damages that my people experience at great cost following the death of a loved one, which generally go unconsidered when damages are estimated.

I have struggled with the issue of how much of the customs, traditions, and culture is appropriate for me to disclose and share. Notwithstanding that some of my people are against sharing their deepest-held beliefs with those outside the tribe, I have come down on the side of sharing information because, as a leader, I believe that it is to their benefit that their losses be considered rather than for them to be not known.

Following the death of a family or extended family member among the native Plateau people of Central and Eastern Washington and among some tribes in Western Washington, there is a period of mourning lasting, at a minimum, for a year or until a memorial is held, whichever takes longer. During this period, the surviving immediate- and extended-family members do not dance or attend celebrations or ceremonial events. During this period, they may not go to the mountains, go hunting or fishing, or gather roots. They are restricted in their diet to eating their natural traditional tribal foods but cannot gather or harvest them for themselves. From the time of death until the memorial, all photographs of the deceased are removed from display. No one may speak the name of the deceased. Usually, the furniture at the home where the deceased lived at the time of death is removed and all different furniture brought in. These practices are mandatory and involve thousands of dollars in expenses to the deceased’s survivors. (To understand how firmly imbedded these customs are, you can read Helen H. Schuster’s 1975 University of Washington doctoral dissertation, Yakima (sic) Indian (sic) Traditionalism; a Study in Continuity and Change.) The question this raises is whether a party at fault should bear any liability for causing a victim’s survivors to experience these costs and hardships.

The death of one of my people also involves the loss of much of the deceased’s personal property, which is required to be given away to persons outside the family. During the mourning, my people must combine their resources, obtain a loan, or otherwise incur debt to save up for holding a memorial. Until the memorial is held, there is no closure of the death of a loved one. The memorial is expensive. It can cost from $20,000 to $50,000.

In connection with the memorial, there is a “stone-setting,” meaning that a headstone is purchased for the deceased’s grave and set in place. At the memorial, the deceased’s hereditary tribal name is given away to another of my people. The memorials are hosted by the deceased’s family and attended by most of the tribal community who knew the deceased, meaning that it is routine for there to be more than 200 attendees at any given memorial — more if the person was well-known or was an elder. Every person attending the memorial is given some item of property in recognition of their association with the deceased. This can be anything from a necklace, a Pendleton blanket (which may cost $140 per blanket), to other personal items. For there to be closure following a death, the decedent’s family must hold a “give-away” at which each and every person attending receives something. Following the memorial, the decedent’s loved ones must feed everyone at a banquet. In connection with this feast, they must not only provide the food, but pay the cooks and the hunters and fishermen. The cost can be tremendous. This is an expense directly flowing from and caused by a death but which, again, is not generally included among what is traditionally thought of as compensable damages.

Similarly, in calculating the “economic loss” to a family resulting from the death of a loved one, you must consider more than their job salary at the time of his or her death. Many tribal members receive a periodic dividend from their tribe, called a “per capita” dividend, which represents that person’s pro rata share of income received by their tribe. This ceases upon death. Additionally, apart from whatever job they held, many tribal members throughout their life exercised their treaty right to harvest salmon and other fish both for their family’s subsistence and to be sold commercially. Because treaty fishing income and resources are exempt income according to IRS regulations (26 U.S.C. 7872), the loss of a fisherman who generated food and money for his or her family is not reflected in a W-2 or Form 1099. This can be a loss to the deceased’s family of another $10,000 to $100,000 annually, which was caused by the death.

My goal is to make sure that those of you who find yourself representing my people in personal-injury or wrongful-death cases are aware of these special losses or “damages” which can flow from a death and which can cost a surviving family thousands of dollars. These practices in the culture of my people should not be dismissed as merely the incurring of a “voluntary” expense that should go uncompensated. Within the culture, they are mandatory.

WSBA member Jack Fiander practices law on the Yakama and other reservations and is a former member of the Yakama Tribal Council. He can be reached at towtnuklaw@msn.com.