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Vol. 39, No. 6

The invisible lawyer? New study looks at challenges of Native American attorneys

by Marilyn Cavicchia


What’s more, it’s not uncommon for these negative feelings and experiences to occur even in groups focused on diversity and inclusion in the profession.

That’s a common scenario for Native American lawyers, according to a first-of-its-kind study released this spring by the National Native American Bar Association. From a total of about 2,640 lawyers in the United States who identify as American Indian, Alaska Native, and/or Hawaiian Native, more than 500 responded to a detailed survey, and more than 50 participated in one-on-one telephone interviews.

A full 40.65 percent of respondents to the survey portion of “The Pursuit of Inclusion: An In-Depth Exploration of the Experiences and Perspectives of Native American Attorneys in the Legal Profession” reported experiencing demeaning comments or other types of harassment based on their race, ethnicity, and/or tribal affiliation. Also, 33.63 percent reported experiencing discrimination based on those factors.

According to Mary L. Smith, president of NNABA when the study was conducted and released, the findings are relevant to all bar associations, regardless of location and the number of known Native American lawyers who practice there.

“I think people would be surprised that even in areas that are not traditionally thought of as high Native American populations, there are probably more Native Americans than expected,” says Smith, general counsel at the Illinois Department of Insurance and a member of the Cherokee Nation. In fact, she notes, about 80 percent of the Native American population lives in urban areas.

Assistance with pipeline, career resources

Even bar associations in areas commonly known to have large Native American populations have some work to do, Smith believes—and some are embarking on those efforts now. For example, she said, in South Dakota, nearly 10 percent of the population is Native American, but over the last three years, only seven of 206 incoming 1L’s at the University of South Dakota have been Native Americans.

The State Bar of South Dakota “has not always made an effort to be inclusive of Native Americans,” Smith says, but new President Eric Schulte and President-Elect Stephanie Pochop are working to change this and have identified the law school pipeline for Native Americans as an area where the bar might be able to help.

Smith encourages other bar associations to start or get involved with pipeline efforts, too. Though many prospective law students of any racial/ethnic background have been scared off by the well-publicized changes in the economy and profession, Smith believes these factors “have not significantly affected potential Native American law students.”

This may be because Native Americans attend law school for very different reasons from that of the general population. Whereas the Law School Survey of Student Engagement usually indicates that having a challenging and rewarding career and achieving financial security are two primary motivations, Smith notes, respondents to the NNABA survey “were more likely to report that they wanted to give back to their tribe, fight for justice for Native Americans, and work for the betterment of Indian people.”

More than other groups, Smith adds, “Native American attorneys report that their decision to attend law school was strongly influenced by family, friends, mentors, and lawyers.”

And once a Native American lawyer is in practice, bar associations of any type may be a good source of connections, information, and referrals for employment opportunities, as 35 percent of respondents said they found these critical career resources through “business/professional networks.”

While it’s important not to pigeonhole Native American lawyers and believe they necessarily practice Indian law—an experience reported by many of the respondents—it’s also true that more than 60 percent of the respondents do practice in that area.

“It then follows that to help attract Native American members, a bar association might create an Indian law committee or section,” Smith says. “At a minimum, a bar association should develop some Indian law programming or a Native American mentoring program.”

Exclusion even within diversity programs

In what the study report calls “one of the more sensitive issues raised in the surveys and interviews,” respondents reported that their “feeling of exclusion persisted even when Native American attorneys were working with racial/ethnic minority attorneys, groups and/or groups in and out of their organizations that focused on diversity and inclusion in the profession.”

Exclusion of Native Americans that respondents experienced in these contexts included: not being seen as an important part of diversity and inclusion efforts, in part because of a lack of understanding about Native American histories, experiences, and ongoing challenges; not being seen as a group that requires deliberate focus because of their relatively small numbers; discrimination not being taken as seriously because it seems different from the discrimination experienced by other racial/ethnic minority groups; offenses being ignored because the small numbers make them seem like isolated instances; and being ignored because it feels “natural” to do so, after centuries of this being the case.

Women fight the ‘double whammy’

One diversity and inclusion concept that emerged very strongly in this study is intersectionality. This term describes the fact that one person may identify with two or more different aspects of diversity, such as race or ethnicity; gender; sexual orientation or gender expression; or disability status.

In particular, women reported more exclusion and denial of opportunity than men in a number of different areas, including: lack of access to informal or formal networking opportunities; being denied advancement or promotion opportunities; being denied appropriate compensation; lack of access to information that affected their ability to perform effectively; lack of access to resources that similarly affected their performance; and the perception that they were less committed because they were mothers. Some female respondents also noted gender bias within their tribe and its politics, policy, and leadership.

Smith says this “double whammy” of race and gender is often even worse for younger female lawyers who are Native, as they are also perceived to be less professional and competent because of their age. Awareness and support within the workplace itself are critically important, Smith notes, but there’s an opportunity for bar associations to “help women navigate the often unwritten rules to success” and to provide “training in business development and rainmaking [that] can also help to empower women to greater longevity and success.”

Support from other specialty bars

In addition to state and local bar associations, Smith hopes other specialty bar associations will take note of the study and look for ways to help. Many already do realize that the Native American population is lagging behind other minority groups in some ways, she says, “because of their small numbers and their virtual invisibility.” As a result, she adds, other specialty bars “have the backs” of Native American lawyers rather than leaving NNABA and its chapters to work alone.

For example, Smith notes, there is currently only one Native American—Hon. Diane Humetewa in Arizona—among the approximately 900 federal judges. A couple of years ago at the Coalition of Bar Associations of Color Advocacy Day, it was not NNABA representatives who pressed the Senate Judiciary Committee on the need for more Native American judicial nominees but Peter Reyes, now a judge and then president of the Hispanic National Bar Association.

“In some respects,” Smith says, “the message was more powerful coming from the HNBA. Frankly, diverse attorneys are stronger advocating and working together to be more inclusive of all groups.”

What else should bar associations do?

Besides making sure to include Native Americans within their diversity umbrella, specifically reaching out to such lawyers in their area, and establishing Indian law sections, Smith believes bar associations can also help Native American communities and Native American lawyers via pro bono and one of their most important and successful functions: education.

“Bar associations play an important role in educating the legal profession and the public,” she says, “and programs can be developed that educate non-Native lawyers and nonlawyers about Indian law and some of the legal challenges facing Native Americans today.”

Smith also urges bar associations of every type to prioritize diversity in leadership, including at the officer level—and to make sure Native American lawyers aren't overlooked in this respect, either. “It takes conscious effort to recruit and mentor diverse candidates,” Smith says, “and this is true of all bars, regardless of their size.”