The ABA’s website prominently features its mission and goals. As one of only a handful of Native Americans practicing law, I have been most interested in Goal III:
Objectives:
All of us are engaged in helping to fulfill the mission and goals of the ABA. Even though our efforts are tireless, voluntary, and often without reward, it is a rare opportunity for us to see or be able to measure the impact we are having on the legal community. The information we share, seminars we sponsor, publications we create, and lobbying we do often fill us with a sense of personal accomplishment, but we often are unable to mark in time or place whether or not we actually made a difference or changed the landscape of our profession. This is not true of the ABA Judicial Clerkship Program, the JCP, and its impact on the Native American legal community.
In 2009, following the confirmation of now Justice Sonia Sotomayor, I highlighted the glaring absence of a Native American presence within the federal judiciary.1 As the country debated Justice Sotomayor’s qualifications, the fact was at the time there were still no Native Americans on the federal bench. Since 2009, there has been one Native American appointed to the federal court, U.S. District Judge Diane Humetewa of Arizona. In the article, I questioned how we, as members of the ABA, could continue to profess and pursue diversity when an entire culture had no presence on the bench. More importantly, I wondered what was needed to effect change and increase judicial opportunity. The lack of Native American attorneys in the judicial pipeline, pursuing and securing judicial clerkships and considering judicial opportunities, was a problem that needed to be addressed.
Following my article, and as the new chair of what was then the Tribal Courts Committee, I was contacted by members of the Judicial Division, many of whom had helped set up the Tribal Courts Committee, including Colonel Linda Strite Murnane and Judge Toni E. Clarke. Through them, I learned about the ABA Judicial Clerkship Program. The JCP invited young minority and diverse students to spend a long weekend meeting with judges from all over the world. The program introduced law students to the idea of pursuing a career in the judiciary and gave them real-time experience as well as invaluable connections to judges who could mentor and even hire them as clerks. I was asked to volunteer to help the program even though I was not a judge. With much humility, and a lot of patience from the incredible ABA staff and judicial volunteers, I met and worked with the students and judges during the 2010 JCP in Atlanta.
What an incredible experience. How I wished that I had such an opportunity available to me when I was in law school. The idea of becoming a judge never entered my young law student mind. In the ’70s and ’80s, Native Americans had few job opportunities outside of working for the federal government or their own Tribes. The idea of becoming a judge or clerking for a judge was not considered or suggested. The connections and pipeline that often begin with a clerkship were simply not present. Not much had changed in the ’90s other than the beginning of Indian gaming, which in turn lured private law firms to represent Tribes and later hire Native American attorneys.
My first year in the JCP was informational and educational, but I was very much aware that something was missing. I noted that of the 80 to 100 students in the program, there was no Native American law student representation, and no one could identify any Native American students having ever been a part of the program through 2010.
When I questioned why there was an absence of Native American participants in the program, there was no easily identifiable reason. The JCP relies on law schools to identify and send students as participants. At the time, box checking Native American on law school applications was rampant and created unreliable information. Additionally, few law schools participating in the JCP had any Native American students. Still, regardless of the reason, it was apparent that Native American law students were not present and were missing an opportunity to enter the judicial pipeline—missing the chance to meet members of the judiciary, which limited opportunities to increase diversity on the bench. It was clear to me that something had to change.
Enter ABA staff member Gilda Fairley. Along with judges on the Tribal Courts Council and members of the Judicial Division’s JCP board, she began the process for overcoming all obstacles and increasing Native American student participation. Among the obstacles were ABA policies preventing outside cosponsorship to cover costs of participation, the challenge of identifying schools with Native American law students, and the need to address cultural and other issues relating to Native American educational systems. But we knew it could be done.
We approached the American Indian Law Center and its Pre-Law Summer Institute (PLSI). PLSI began in 1967 providing Native Americans and Alaska Natives a full first-year law school experience condensed into a two-month summer program. The PLSI program helped prepare Native American students who were about to enter law school. The program provided insight in how to think, write, and analyze from a legal perspective. My father was one of its first participants.
Students who participated in the PLSI program attended law schools all across the country, many of which did not participate or send students to the JCP. It was clear that although PLSI was not a law school, it had access to and could provide information for Native American law students that would help address the absence of Native American law students at the JCP. Heidi Nesbitt, PLSI director, and Assistant Director Rodina Cave-Parnell questioned the possibility of allowing PLSI to act as a law school. That classification would permit PLSI to nominate, fund, and send Native American law students who had participated and completed the PLSI program to the JCP.
It took four years of joint effort, cooperation, and support from the Judicial Division, Tribal Courts Council, and numerous others across numerous sections and conferences to allow PLSI to be listed as a law school. During the four years, the ABA House of Delegates passed an anti–box checking resolution that required applicants for law school who checked the Native American box on their application to provide additional information about their Native American citizenship.2 The bylaws of the ABA were amended to permit non-law-trained Native American judges and court personnel to join the organization as full members. The House of Delegates approved a requirement to include the phrase “Tribal governments” on resolutions submitted to the House for approval. The Specialized Court Judges helped change the Tribal Courts Committee to become the Tribal Courts Council, with a permanent place within the Judicial Division. Each of these actions laid the foundation to increase a Native American presence within the Judicial Division Conference of Specialized Court Judges.
The process for identifying appropriate Native American law students was not easy. Sharon Tindall of the Council for Racial and Ethnic Diversity in the Educational Pipeline and Judge Toni E. Clarke as chair of the JCP handled numerous questions, problems, and issues as well as provided insight and advice to PLSI, and in 2014, the JCP welcomed its first four Native American law student participants. Since 2014, the yearly numbers of Native American law student participants in the JCP have continued to increase. In addition, the JCP has welcomed and invited Tribal judges and members of the Navajo Nation’s attorney general’s office to participate in the program and has welcomed the participation of Federal Magistrate Judge Leo Brisbois, a member of the Ojibwe Tribe of the White Earth Reservation, as a mentor and judicial participant.
The result of this concerted team effort has been immediately apparent. This past year saw the return of Alex Mallory, a prior JCP attendee, as a speaker and panelist. Mallory is currently clerking for Federal Judge Diane Humetewa in Arizona and also clerked for the U.S. Department of Justice Immigration Judiciary. Numerous other Native American JCP participants have found judicial clerkships after attending the program. Most importantly, the JCP has not only welcomed Native American law students to the program but also helped create a way for the most marginalized and unrepresented group in our legal system to not only be present but also find a place at the judicial table. It has introduced Native American law students to judges, mentors, and others. Most importantly, it has provided education and cultural diversity training to judges and others to help increase understanding and change perceptions of justice involving Native Americans and Indian Country.
It is my opinion that few programs in the ABA have had such an immediately measurable impact on the ABA’s mission and goal of promoting and ensuring full and equal participation of all persons in our profession. In a few short years, the Judicial Division and the JCP have seen the fruit of the JCP ripen into current judicial clerks and future judges. Just as Justice Sotomayor and the recent confirmation of Justice Ketanji Brown Jackson highlight the importance of inclusion and opening the possibilities for others by being the first, the JCP has changed the face of judicial opportunity for the future of those potential Native American judges by introducing them not only to the idea of preparing for the possibility of a judicial career but also providing a pipeline, path, and support along the way.
The JCP has also increased the understanding and cultural knowledge of those judges and attorneys who have participated in the program. Without a doubt, the presence of Native American law students in the JCP has required many to learn new ways of addressing cultural misappropriation and outdated concepts of the Native American community. If the judiciary is seen as the heart of the perception of justice and diversity, the JCP has most certainly helped increase its heartbeat by creating pathways for potential judicial candidates to include Native American law students and lawyers whose presence was previously absent.
1. Robert Saunooke, Native Americans and the Federal Bench: The Time Has Come, 48 Judges’ J., no. 4, Fall 2009, at 25.
2. Between 1990 and 2000, law schools reported 2,497 Native American law graduates while census records indicated an increase of only 228 Native American attorneys.