October 01, 2014

Native American Attorneys Systematically Excluded in the Legal Profession

by Mary Smith

This year marks the 40th anniversary of the Indian Self-Determination and Education Assistance Act of 1975, which allowed tribes more control over administering federal programs. Enacted in a new era of self-determination for Indian tribes, the Act signaled new promise and hope for Native Americans in the Untied States. With more opportunities for legal control over their affairs, a group of Native American lawyers emerged to help advocate for tribal sovereignty. Forty years later, however, while tribal sovereignty has been strengthened over time, the status and inclusion of Native American attorneys in the legal profession at large remain challenging at best.

In order to raise the visibility of Native American attorneys in the legal profession at large, to effectuate lasting reforms in the legal community, and to help build a better pipeline to law school, the National Native American Bar Association (NNABA) conducted the first-of-its-kind study of Native American attorneys. This study is entitled “The Pursuit of Inclusion: An In-Depth Exploration of the Experiences and Perspectives of Native American Attorneys in the Legal Profession.” (The target group for this study was Native American lawyers. NNABA includes as Native Americans American Indians, Alaska Natives, and Native Hawaiians. The terms “Indian,” “American Indian,” and “Native American” are all used, interchangeably, to mean the indigenous peoples to what is now the United States. “Indian” is the term used in the federal Constitution and Title 25 of the U.S. Code.)

This research provides the first comprehensive picture of the issues confronting Native American attorneys across all settings—including private practice; government practice in federal, state, and tribal arenas; the judiciary; corporate legal departments; and academia. Ultimately, the findings in this study will be used to develop educational materials and programs that will help improve the recruitment, hiring, retention, and advancement of Native American attorneys in the legal profession.

Summary of Findings and Overarching Conclusion

There were four key areas of findings that emerged from this comprehensive study:

  1. The extraordinary complexities and challenges of identifying and living as a Native American lawyer,
  2. The unique pipeline challenges faced by Native American lawyers,
  3. The particular professional development opportunities and challenges faced by Native American lawyers, and
  4. The specific personal satisfaction, inclusion, and alienation experienced by Native American lawyers in the legal profession.

Research Methodology and Strategy

There are only 2,640 Native Americans attorneys in the United States, comprising 0.2 percent of the more than 1.2 million attorneys in the United States. See, e.g., Native American Attorneys: Small in Number, Not in Influence, Diversity and the Bar, Minority Corporate Counsel Ass’n (MCCA), www.mcca. com/index.cfm?fuseaction=page. viewpage&pageid=882 (“the American Bar Association ascertained that of the 1 million lawyers in the United States, only 3.9 percent are African American, 3.3 percent are Latino, 3.9 percent are Asian American, while just 0.3 percent are American Indian”) (citation omitted). See also Am. Bar Ass’n, Lawyer Demographics, available at www.americanbar.org/content/ dam/aba/administrative/market_ research/lawyer_demographics_2013. authcheckdam.pdf. Five hundred twenty-seven Native American attorneys, or about 20 percent of the entire Native American attorney population in the United States, responded to the survey. Survey participants were asked about their decision to attend law school, their career experiences, and their decisions to stay or leave the legal profession. Of the 527 survey respondents, women comprised 57 percent and men, 43 percent.

In addition to the quantitative data provided by the survey responses, the research was supplemented with a focus group of more than 10 Native American attorneys that consisted of a facilitated discussion and 54 one-onone confidential telephone interviews with 23 men and 31 women.

Demographics of the Survey Respondents

The Native American population is young, with the median age for Native Americans 30.8, compared to 37.5 for the U.S. population as a whole. 2011– 2013 American Community Survey, U.S. Census, http://factfinder2.census. gov/faces/tableservices/jsf/pages/ productview.xhtml?pid=ACS_13_3YR_ S0201&prodType=table. Not surprisingly then, Gen Xers (born between 1965 and 1980), representing 50 percent of the respondents, and Gen Yers (born after 1980), at 15 percent, made up the majority of the respondents to the survey. Persons born before 1946, referred to as Traditionalists, represented 4.59 percent, and Baby Boomers (born between 1946 and 1964), 33 percent.

NNABA’s survey respondents were younger than the legal profession as a whole—43 percent of respondents had practiced less than ten years, with 20 percent practicing less than five years and 22 percent practicing between 6 and 10 years. Rounding out the responses, 17 percent practiced 11 to 15 years; 12 percent had practiced from 16 to 20 years, and 28 percent had practiced for more than 21 years.

The Complexity of Simply Being an Indian

A general definition of who is an Indian can be found in the Smithsonian Handbook of North American Indians. See 4 Handbook of North American Indians: History of Indian-White Relations (William C. Sturtevant gen. ed. & Wilcomb E. Washburn vol. ed., 1989). There would be three components: the individual would (1) have ancestors who were in America before the arrival of Europeans, (2) be recognized by the community where he or she lives or where he or she is originally from as Indian, and (3) hold him- or herself out to be Indian.

The social stigma and discrimination that may flow from holding oneself out to be Indian can cause some people who are Indian to not identify themselves as Indians in professional settings. In fact, 6.87 percent of the participants in the survey stated that they do not identify themselves as Indian in work or social settings.

Pipeline into Law School

The growth of Native American law student enrollees per year has increased from 392 in 1979–80 to 1,273 in 2009–10, yet the percentage growth of Native Americans in relation to the overall law student population has been miniscule from—0.32 percent in 1979–80 to 0.82 percent in 2009–10. Am. Bar Ass’n, American Indian or Alaska Native J.D. Enrollment (1971–2010), available at www. americanbar.org/content/dam/aba/ migrated/legaled/statistics/charts/ stats_11.authcheckdam.pdf.

The statistics from the American Bar Association (ABA) are the only statistics available, and there is a degree of unreliability in these statistics as the result of a phenomenon called “box checking.” This is where an applicant to law school, even though he or she has no factual basis to claim being Native American, nevertheless “checks” the Native American box on the law school application in the hope of receiving some sort of preferential treatment. Between 1990 and 2000, ABA-approved law schools reported giving J.D.s to 2,497 Indian law students, while the U.S. Census reports showed a growth of 228 in the number of Indian lawyers in the same ten years. There appears to be a serious disconnect between “Indians” in law school and the number of Indian lawyers. (For more information on the “box checking phenomenon,” see Lawrence Baca, American Indians and the “Box Checker” Phenomenon, IILP Review 2011: The State of Diversity and Inclusion in the Legal Profession (2011), available at http://nylawyer.nylj.com/ adgifs/decisions/090611diversity. pdf.)

Motivations for a Law School Education

The reasons the respondents decided to attend law school differed significantly from the motivations of the general lawyer population. The Law School Survey of Student Engagement generally identifies the desire to have a challenging and rewarding career and financial security as two primary reasons to attend law school.

In contrast, NNABA’s survey respondents chose to attend law school for reasons that are unique to Native Americans. When asked about their motivation to attend law school, the respondents 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 than they were to report wanting a rewarding career for themselves or seeking financial security.

Information and Support Systems for a Law School Education

Once Native American students are motivated to consider law school and the legal profession as viable career choices, they then have to have access to information and support systems to succeed. When asked to identify factors that influenced them to attend law school, 37 percent of respondents reported that connections made and/or information received through family members and friends were important factors, followed by 22 percent who reported that connections made and/or information received through tribal networks were influential factors.

Respondents also noted the Pre- Law Summer Institute (PLSI), active service in the military, and a feeling of destiny or spiritual guidance led them to the law. Of the 30 percent of survey respondents who had attended PLSI, the majority felt that the program had greatly contributed to their decision to attend law school as well as their ability to enter law school prepared.

When asked about barriers to attending and succeeding in law school, the primary barriers cited by the attorneys in this study were financing law school (costs for application, Law School Admission Test preparation, tuition, and room/ board), making informed decisions about the best law schools to attend, navigating the application process, knowing how to prepare to be successful in law school, and creating the social networks in law school necessary for getting the information and resources necessary to be successful.

Workplaces and Practice Settings

A large number of the survey respondents had indicated that they wanted to serve their tribe or to help protect tribal sovereignty, and, in fact, more than 20 percent of respondents practiced in the tribal sector. The next five predominant practice settings were as (1) attorneys in private law firms with less than 50 attorneys (12 percent), (2) attorneys in the federal government (8.5 percent), (3) attorneys in the public/ nonprofit sector (8 percent), (4) solo practitioners (7.5 percent), and (5) attorneys in private law firms with more than 501 attorneys (only 5.7 percent). The overwhelming majority (over 63 percent) reported focusing on Indian law.

Pressures and Motivations to Practice Indian Law

While many would have suspected that large numbers of Native American attorneys’ practices focus on Indian law, the research results confirm this suspicion resoundingly. This research attempted to identify the motivations for Native Americans to attend law school, and the research did reveal some common narratives such as giving back to one’s tribe and working toward improving the condition of Indian people.

The research also revealed some unique pressures for Native Americans to practice Indian law, both from within the Native American community and from non-Natives. The majority of survey respondents described their choice to practice Indian law as voluntary and deliberate. However, survey respondents did reveal some pressure to return to their tribe to practice or to practice Indian law.

For respondents practicing in firms with multiple practice areas, several reported that even when they expressed a desire to practice in other non-Indian law areas, their employers would pressure them to contribute to the Indian law practice. Some respondents noted that the only jobs for which they were recruited were jobs related to Indian law either in the federal government, tribes, or law firms with an Indian law practice.

Overall Satisfaction as a Lawyer

In direct response to a survey question, the majority of respondents stated that they were satisfied with their careers. Of interest, the most satisfied with their careers were those working in the tribal sector, and the least satisfied were those working for the government or law firms.

Even though there was overall satisfaction by attorneys working for tribes, some respondents did express that tribal politics, heavy workloads, and frustration with making a difference tempered the satisfaction. As for dissatisfaction in law firms, one respondent summarized his frustration: “Working as an attorney in Federal Indian Law in a major market, the projects are driven by the desires of the clients with the most money—often the goals and priorities of these clients are not aligned with and/or are damaging to tribal clients who need help the most . . . leading me to conclude that employment as an attorney in Indian law was not the best way to be an advocate.” Men were significantly more likely to report being “extremely satisfied” with their careers (48 percent) than their female colleagues (27 percent).

Experiencing the Profession

The results of the study are disturbing. A significant percentage of Native American attorneys experience demeaning comments, harassment, and discrimination. Although the overall satisfaction rate was generally high, 40 percent of respondents reported experiencing demeaning comments or other types of harassment based on their race, ethnicity, and/or tribal affiliation. Similarly, about 34 percent reported experiencing discrimination, and 30 percent reported that they felt that they had been treated differently from their peers because of their race, ethnicity, and/or tribal affiliation. These overall numbers are intolerably high and indicate the experiential challenges faced by Native lawyers.

The Path to Inclusion

Biased perceptions of Native Americans often result in a lack of progress for Native American attorneys, and an overall lack of understanding about Native American issues and Indian law gives way to feelings of isolation and a lack of inclusion for Native American attorneys. Respondents reported that training and better awareness of Indian issues would have had positive impacts on their careers.

Traditional diversity and inclusion programs are not reaching Native American attorneys. “Inclusion” in these programs does not seem to extend to Indian lawyers. One attorney summed up this exclusion: “I feel completely ignored in my firm’s diversity efforts. I’ve been made fun of because I’ve asked them to focus on Native American issues.”

When respondents were asked about areas in which improvements can be made to alleviate the concerns they expressed, 83 percent felt that more substantive training and development opportunities would have a positive impact, and about 77 percent reported that more awareness and understanding of issues faced by Native Americans would have a positive impact on their careers.

There is a larger debate within the community of Native American attorneys as to where resources and activities should be focused and prioritized. While some attorneys strongly felt that creating more inclusive workplaces in the private and public sector will encourage more Native Americans to enter into and stay in the law, others felt equally strongly that the resources and activities should be focused on getting more Native American youth into law school in order to increase the number of Native Americans practicing with and for Native American tribes. This debate is rooted in the fundamental agreement that more Native American students should be introduced to the possibility of a legal career at a young age and then supported financially and otherwise so they graduate law school ready to thrive as a lawyer.

Recommendations and Strategies for the Future

This study was designed not only to raise awareness about Native attorneys but also to chart a path to greater inclusion in the pipeline, in law school, and in the profession.

The pipeline begins long before the decision to attend law school. There was a fundamental agreement among the respondents that more Native American students should be introduced to the possibility of a legal career at a young age and then provided with the tools, both financially and otherwise, to succeed.

More than other groups, Native American attorneys report that their decision to attend law school was strongly influenced by family, friends, mentors, and lawyers. As such, community, social, and tribal networks can play an important role in encouraging young students to attend law school and to help more fully develop a robust pipeline from tribal communities.

Once the decision to attend law school is made, additional efforts can be made to ensure that more Native students are admitted into law school. The report notes the value of programs such as the Council on Legal Education Opportunity and PLSI but emphasizes that every pre-law program should actively recruit and include Native American students.

Similarly to success in the workplace, success in law school depends on strong support systems and both formal and informal networks. Much like NNABA for attorneys, establishing a National Native American Law Student Association chapter can be a fantastic resource for support and professional development. Law schools and their career centers can learn more about the unique reasons that many Natives attend law school and then work to craft strategies to help them in their goals.

According to the report, there must be a concerted effort to include Native American attorneys in the social and professional lives of institutions. Special and systemic efforts need to be made to better understand the experiences of Native attorneys and to make the firm culture as open and inclusive as possible. Because of the often small numbers of Indian attorneys in some settings, extra efforts need to be taken to ensure full integration. Indeed, a single Native attorney should not become the “token” for a whole population, but should be judged on his or her individual merits.

In terms of the pipeline, institutions must increase the awareness and integration of generational differences in hiring, training, development, and advancement efforts of Native American lawyers.

Finally, for all of these efforts to make a difference, there needs to be accountability, whether it is for law schools, the government, or law firms. These institutions must make specific gains in the above areas part of the measure of the overall success of the organization.

Conclusion

The research reveals a young population of Native American attorneys with some cause for hope. Overall, however, the findings offer a stark and searing portrait of an entire set of attorneys who have systemically been excluded from full participation in the legal profession. The causes stem from barriers in the pipeline to ineffective recruitment and retention efforts. Forty years from now, hopefully, a different picture will emerge with greater numbers of Native American attorneys not only surviving but thriving across all practice settings.


This article is an adaptation of an earlier version that originally appeared in The Federal Lawyer.

Mary Smith

Mary Smith is president of the National Native American Bar Association and is special counsel and estate trust officer at the Office of Special Deputy Receiver in Chicago, Illinois. Earlier in her career, she served as associate counsel to the President in the Clinton White House and was responsible for Native American policy.