Creating Pathways to the Judiciary for Native Americans and Alaska Natives through Tribal Courts

The courts and justice system provide vital services for communities—from holding individuals accountable for breaking laws and restoring the harm they have caused, to providing relief and services for victims, to helping protect vulnerable individuals. Native American and Alaska Native lawyers and jurists have often been overlooked in the appointment and recruitment process to the state and federal bench. National Native American Bar Association. (The Pursuit of Inclusion: An In-depth Exploration of the Experiences and Perspectives of Native American Attorneys in the Legal Profession (2015).) As such, they are grossly underrepresented at all levels of state and federal courts, including the U.S. Supreme Court. As of 2022, the federal bench boasts five Native American judges, a significant milestone marked by an all-female lineup. This group features distinguished jurists such as Hons. Sunshine Suzanne Sykes (Navajo), Lauren King (Muscogee (Creek) Nation), Diane Humetewa (Hopi), Ada Brown (Choctaw), and Lydia Kay Griggsby. Notably, only seven Native American judges have ever served in federal courts, with Hon. Michael Burrage and Hon. Frank Howell Seay being among the trailblazers. It’s worth highlighting that Judges Sunshine Suzanne Sykes, Lauren King, and Lydia Kay Griggsby were appointed by President Joe Biden, underscoring the administration’s commitment to increasing Native American representation on the federal bench.

In October 2023, President Biden nominated Sara Hill (Cherokee) to the U.S. District Court for the Northern District of Oklahoma, but at the time of the printing of this article, she has not yet been confirmed. (Acee Agoyo, Cherokee Nation Attorney Makes History as First Native Judicial Nominee in Oklahoma, Indianz.com (Oct. 18, 2023).) While a considerable improvement, the Native American Rights Fund (NARF) reports that in order for the federal bench to reflect the nationwide demographic of Native Americans, at least 14 more Native American judges would need to be appointed to the bench. (The National Congress of American Indians and NARF Joint Statement on the Nomination by President Biden of Washington State’s First Ever Native American Federal Judge, Native American Rights Fund (May 12, 2021).) More work remains to ensure that our federal courts reflect the true diversity of our nation. It is imperative that we collectively advocate for the appointment of Native American judges at all levels of the state and federal judiciary in order to close the representation gap. This will foster a more inclusive, just legal system for all—including for Tribal citizens and nations.

A State and Federal Judiciary that Includes Native American and Alaska Native Jurists

Increasing the representation of Native Americans and Alaska Natives in the judiciary must be a continuing priority in order to promote diversity, fairness, and cultural understanding in the legal system. (Paige E. Hoster, Understanding the Value of Judicial Diversity Through the Native American Lens, 36 Am. Indian L. Rev. 457, 459 (2012).) Diversity in the judiciary improves decision-making, reduces biases that can undermine federal court proceedings, and instills confidence in the judicial system when it reflects the diversity of America. (Jennifer Bendery, Senate Confirms First-Ever Native American Federal Judge In California, HuffPost, May 18, 2022.) To achieve this type of diversity in the judiciary, it’s important to have inclusive recruitment and appointment processes, mentorship programs for Native American and Native Alaskan attorneys, and initiatives that encourage individuals from Tribal backgrounds to pursue legal careers and eventually the bench. (Leah Jurss, Representation and Inclusion: Moving Toward Demographic Parity for Native American Attorneys, 68-OCT Fed. Law. 14, 15 (2021).) These efforts combined with ongoing efforts to address bias, educate the general public and the judiciary about tribes and Tribal issues, and promote inclusivity in the legal profession and judiciary can help promote a more diverse and equitable judiciary for Native American and Alaska Native populations.

Increasing Native Americans and Alaska Natives on the bench is not just a matter of representation, but it’s a necessity for well-informed and fair judicial decision-making. An illustrative case from Washington State underscores this point. In a rare opinion, a former Tribal court judge, Washington Supreme Court Justice Raquel Montoya-Lewis, wrote an in-depth opinion that highlighted her deep understanding of the Indian Child Welfare Act. (See In re Dependency of Z.J.G., 471 P.3d 853 (Wash. 2020).) As emphasized by Mark Macarro, the first vice-president of the National Congress of American Indians elected in November 2023, federal law and court interpretations profoundly impact Tribal life, further highlighting the critical importance of diverse perspectives on the bench in shaping just and informed legal outcomes. (Bendery, Senate, Supra.)

Serving as a Tribal court judge provides an invaluable training ground that should not be overlooked when considering candidates for state and federal benches. This role demands a deep understanding of complex jurisdictional issues and the intricate interplay of Tribal, state, and federal laws. Tribal judges often grapple with questions surrounding the exercise of governmental power, honing their ability to navigate these intricate legal landscapes not experienced by other jurists. Additionally, they develop the skills necessary to work effectively with self-represented parties and learn crucial administrative skills. Moreover, the diverse array of cases they handle and the need for expedient resolutions equip them with a breadth of experience rarely found in judges assigned to a single docket. In essence, the role of a Tribal court judge offers a unique and comprehensive training experience that can greatly benefit the broader judicial system.

The National American Indian Court Judges Association

Tribal courts are an essential, invaluable pathway to the state and federal judiciary. The National American Indian Court Judges Association (NAICJA) plays a multifaceted role in promoting Native Americans in Tribal, state, and federal judiciaries. It provides critical professional development opportunities, including training and resources, to Native American judges, peacemakers, and court personnel that enhance their knowledge and skills for effective community service. (National American Indian Court Judges Association, NAICJA Bylaws, (last visited Nov. 4, 2023).) NAICJA was established in 1969, and it is the only membership organization dedicated to issues related to Tribal justice systems. Id. It was founded during a period when Tribal Nations were reasserting their sovereignty and seeking to address the unique legal challenges they faced. In its early years, NAICJA focused on providing a platform for its judicial members to learn, network, and address common issues and challenges. Id. NAICJA’s current mission and activities include strengthening the Tribal judiciary, increasing the capacity of Tribal court judges, advocating for policy related to Tribal justice systems, and providing cross-jurisdictional education. Id. Of the recently appointed federal judges, both Judges King and Sykes have participated in NAICJA trainings; Judge King also formerly served as a member of the NAICJA Board of Directors.

NAICJA staunchly advocates for the safeguarding and strengthening of Tribal sovereignty, ensuring that Tribal courts retain jurisdiction in areas like child welfare, criminal justice, and civil matters. Through fostering collaboration with various systems stakeholders and networking among Tribal, state, and federal judicial stakeholders, the organization facilitates dialogue and information exchange, enabling Tribal courts to remain current on legal developments and best practices. NAICJA also advocates for federal policies impacting Tribal justice systems and contributes to educational outreach efforts, raising awareness about Tribal sovereignty principles.

In addition to providing comprehensive training and outreach, NAICJA recently partnered with the American Indian Law Center at the University of New Mexico to create an accompanying guide for Tribal courts to create and hire judicial law clerks. (American Indian Law Center, Inc. and the National American Indian Court Judges Association, The Tribal Court Guide to Judicial Clerkships (Sept. 2022).) The NAICJA Judicial Law Clerk Guide helps Tribal courts understand the importance of judicial law clerks and also aids in building the capacity so these courts can hire Tribal judicial law clerks. Tribal judicial clerkships are an important path to the bench because they provide those law clerks with essential skills and knowledge while also serving as a potential pathway to the bench. Offering comprehensive training in Tribal court operations, jurisdictional complexities, and federal Indian law prepares judicial law clerks to effectively work within Tribal, state, and federal justice systems. As these individuals gain specialized knowledge and experience, they become well-suited candidates for judicial positions, contributing to a more diverse and representative judiciary, both within Tribal courts and potentially in both state and federal judiciaries.

Lastly, NAICJA is engaged in the National Council of Juvenile and Family Court Judges DEI (diversity, equity, and inclusion) Collaborative, demonstrating its commitment to advancing diversity, equity, and inclusion in the judiciary. Through collaborative efforts with other national organizations, NAICJA is dedicated to promoting the inclusion of Native American judges and legal professionals in the broader justice system. By fostering partnerships, advocating for representation, and providing essential resources, NAICJA plays a pivotal role in preparing Tribal court judges, educating state and federal system stakeholders, and ensuring Tribal perspectives are recognized and valued, thereby creating pathways to a diverse judiciary.