The Growing Market for Indian Lawyering

Volume 27, No. 2 - Winter 2015
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AMERICAN INDIAN LAW AND TRIBAL COLLEGES

Image courtesy of the National Museum of the American Indian

In 2005, I served as an instructor for an online undergraduate course entitled “Contracts/Torts for Project Peacemaker” at Turtle Mountain Community College. Preparing for the class reminded me of my own experience leading into law school, where I knew (or thought I knew) what a contract was, but had no idea what torts were. My law school torts professor described torts as a class in “what happens after s*** happens.” Virtually everyone will enter into a contractual relationship at some point in their adult lives, such as by purchasing a house or a car, or signing a rental agreement. Unfortunately, most people will become aware of torts at some point too, when they have a car accident or when an accident happens in the home.

Halfway through the class, I noticed many of my students stopped signing on. The college administrator informed me that portions of the Sisseton-Wahpeton Oyate reservation, where many of my students lived, had flooded, and several students had been relocated or had lost power and could no longer attend the online course. It occurred to me that some of the doctrines we had talked about in class would soon become acutely relevant to these students— questions about their housing leases, car payments, employment relationships, and so on. But because this was Indian Country, Indian law would also permeate the legal issues that could arise from their displacement and troubles. I imagined that my students who one day hoped to go on to law school would be rudely introduced to concepts they would someday study with other students who had no experience with such matters, as was my case when I started law school. The flood and disruption to my students also reminded me that American Indian students often face obstacles to their education, and many Indian people who dream of legal education might never get the opportunity to pursue it.

For many Indian students, tribal colleges and universities (TCUs) are the best option for acquiring a basic understanding of Indian law. Some of these students may go on to law school and some may not, but all of the students who hope to work in tribal government can benefit greatly from Indian law survey classes at TCUs.

A SHORT HISTORY OF INDIAN LAWYERING

In 2000, the U.S. Congress finally repealed the technical statute that required Indian nations to seek approval from the Secretary of the Interior for attorney contracts. Imagine that—before 2000, Indian tribes were forced by federal law to get permission to hire an attorney. Think of all the disputes Indian tribes have had with the United States, state governments, and others before the year 2000, and in each instance the federal government had to approve the arrangement between the tribe’s lawyer and the tribe.

For many Indian students, tribal colleges and universities are the best option for acquiring a basic understanding of Indian law.

The tribal attorney contract approval requirement begs the question— did the Interior Secretary ever refuse to approve an attorney contract to prevent a tribe from asserting its legal rights? Of course! Felix Cohen, the father of modern federal Indian law and a former federal government attorney, detailed instances in 1953 where the Interior Department interfered with the relationship between Indian nations and their preferred legal representatives. Cohen himself was the subject of some of that interference, in that the Interior Department attempted to prevent him from representing Indian nations after he left governmental service.

Indian tribes now may retain any lawyer they wish without interference from the United States government or anyone else. And many tribal governments actively seek to be represented by American Indian lawyers.

THE MARKET FOR INDIAN LAWYERS

The market for Indian lawyers has never been greater in the history of American law, and it is likely to keep growing for the foreseeable future. American Indian people interested in higher education, interested in serving as Indian law advocates in tribal, state, and federal justice systems, or interested in tribal governance should seriously consider law school as an option. There literally has been no better time to do so.

In the mid-1960s, there were fewer than 25 American Indians who were practicing lawyers. Many people, law school admissions officers included, apparently believed that American Indians from reservation communities could not handle a law school environment and could not perform the kind of work law school required. In response, University of New Mexico Law School administrators formed the Pre-Law Summer Institute for American Indians (PLSI) as a demonstration project of sorts, to prove to admissions officers and others that Indian students actually could do the work. PLSI is an eight-week program designed to introduce Native students to the rigors of law school. Nearly 50 years later, more than 90% of the approximately 1,000 PLSI alums who matriculated to law school eventually graduated. Upwards of half of the American Indian lawyers who have practiced since the mid-1960s attended PLSI, a remarkable figure. It is the single most successful program of its kind, and it continues to be highly recommended.

Today there are approximately 2,400 American Indians who are lawyers, amounting to only about 0.2% of all lawyers in the United States, even though the U.S. Census estimates that American Indians make up 1.6% of the population. In contrast, more than 88% of American lawyers are White, although only 77% of the population is White. American Indians are sorely underrepresented in the legal field in general and in the federal judiciary in particular. Out of more than 800 federal judges, only one is a member of a federally recognized Indian tribe: Judge Diane Humetewa (Hopi) in the District of Arizona.

The market for Indian lawyers has never been greater in the history of American law, and it is likely to keep growing for the foreseeable future.

There are now 567 federally recognized Indian tribes and 426 tribal court systems. Tribal governments are staffing in-house counsel for executive, legislative, and judicial departments. They are staffing prosecutor, public defender, citizen’s counsel, and Indian child welfare presenting officer positions all over the country. Indian gaming is a $30 billion-a-year industry and tribal natural resource extraction enterprises generate billions more. Lawyers are needed to manage and regulate tribal business operations, negotiate contracts, and occasionally litigate disputes with businesses, other tribes, states, and the federal government. Federal self-determination and self-governance contracts direct another billion dollars to tribal governments, and those funds require precise accounting and monitoring—usually with a lawyer’s advice.

PREPARING FOR LAW SCHOOL

Tribally controlled colleges and universities are in a great position to prepare American Indians for law schools and legal careers, but legal education is changing and schools and mentors must be knowledgeable. Gone are the days when pre-law programs were the predominate feeders of law schools. In fact, pre-law programs should be discouraged in some circumstances. Law school admissions officers look to a well-rounded student experience in undergraduate and graduate programs. The most prepared law students major in philosophy, physics, chemistry, engineering, literature, mathematics, statistics, and several other fields.

Perhaps most critical to law school preparation is a heavy emphasis on reading, critical thinking, and writing—three skills that, at their core, law schools are best at teaching. Learning rules and procedure is secondary to these tools that are needed to be a lawyer, not to mention passing the bar exam. Incoming law students without a strong grounding in these three intellectual tools are at a serious disadvantage. Undergraduate courses that have a substantial reading and writing component are premium courses for preparing students for law school.

Relatively new to legal education is an emphasis on financial and technological literacy. Lawyering has always required practitioners to read, understand, and generate spreadsheets, and to comprehend complex financial operations. Also, in new and important ways, technology has permeated legal practice, requiring many lawyers to understand coding (programming) in order to advise tech clients, to manage their business operations, or even just to advertise online. Incoming law students grounded in math and sciences have important advantages here.

In addition to the regular curricular requirements for Indian students interested in law school, TCUs should encourage and offer support for Law School Admission Test (LSAT) preparation. Although it is well established that LSAT scores are poor predictors of law school success, and even worse predictors of lawyer success, every law school admissions office depends heavily on LSAT scores. Law schools admissions are practically governed by the U.S. News rankings that focus on test scores. What is very well established empirically is that good LSAT test prep dramatically improves LSAT scores. Most law student candidates cannot afford the expensive LSAT test prep classes and materials. Tribal colleges can provide those resources, and can also offer LSAT prep classes for credit. The upfront costs will be more than covered by the outcomes— more Indian people taking the LSAT, more Indian people succeeding at the LSAT, and more Indian people going to law school and becoming lawyers.

INDIAN LAW AND TRIBAL GOVERNANCE

Not every student interested in Indian law and tribal governance need pursue law school. Tribal colleges and universities can devise Indian law and tribal governance courses that offer surveys of American Indian law and policy, and the specific tribal laws of Indian nations. Tribal government officials, elected, appointed, and employed, are all routinely required to understand, interpret, and apply legal rules in their day-to-day work.

In a given week, a tribal leader may be called upon to visit Congressional leaders or federal administrators in Washington, D.C., on Monday. On Tuesday, the tribal leader may be in the state capitol discussing gaming or tax issues with state leaders. On Wednesday, he or she may be in a tribal council meeting dealing with local reservation concerns. On Thursday, that leader may be serving in meetings as a member of the tribe’s corporate board of directors to discuss business operations. Will the tribal leader rest on Friday? Perhaps not, if there’s a meeting with county officials on a law enforcement cooperative agreement issue. On the weekend, he or she may be in strategy sessions with Indian lawyers and other tribal officials. No other elected officials in the United States deal with so many branches of the American government as tribal leaders do routinely.

Elected tribal officials will be called upon to learn and understand complex principles of Indian law. Tribal attorneys will be advising elected officials on federal issues such as gaming, natural resources, self-determination and self-governance compacting, and criminal and civil jurisdiction over members, nonmember Indians, and non-Indians. Elected officials will be making critical decisions on dealings with states and counties involving taxation, land use, law enforcement, and other issues. Elected leaders will be drafting, studying, and voting on tribal legislation and regulations, and they must intimately comprehend the many intricacies of tribal government. Elected leaders will become familiar with—and even experts on—health care, law enforcement and public safety, intergovernmental cooperation, housing, social services and child welfare, environmental regulation, and many more areas.

Tribal managers must be experts in their respective fields, but must also become familiar with financial legal issues, employment law, administrative law, and numerous aspects of tribal law and governance. Tribal law that governs enterprise and government departments will be supplemented by applicable federal and state law. For example, tribal managers and employees should be aware of federal Labor Department wage and hour regulations. Undergraduate courses surveying federal Indian law and policy and offering real-world governance experience would be especially important to prospective non-lawyer tribal leaders, managers, and employees.

LAY ADVOCATES AND JUDGES

There is also a market for non-lawyer advocates and judges in tribal justice systems. Many Indian reservations are home to active tribal justice systems that depend on lay advocates to fill a void where lawyers are scarce or too expensive for reservation residents. Indian tribes also hire and train non-lawyers to serve as advocates in tribal court for a variety of purposes, representing either the tribal government or individual tribal citizens. Tribal managers and employees, especially social workers in Indian child welfare matters, may also appear in tribal courts or tribal administrative hearings. Lay advocates grounded in Indian law from TCU courses will have a strong advantage and be virtually practice-ready.

Many Indian tribes also appoint or elect tribal judges who are non-lawyers. Many tribes require as a matter of tribal law that tribal judges be citizens of the tribe, elders, or fluent in the Native language or culture. Lawyers may or may not meet these qualifications, and so many tribal judges are non-lawyers. Lay advocates and judges, however, are not favored in tribal criminal cases, especially where jail time is a possibility.

INDIAN LAW AND TRIBAL HISTORIES

Finally, tribal governmental history often cannot be understood effectively without grounding in Indian law. Every reservation and tribal history differs and is unique, but federal Indian law and policy has imprinted numerous commonalities onto these histories. Indian lawyers often offer summaries of Indian law concepts and doctrines to elected tribal leaders and to tribal managers, but these summaries are poor substitutes for undergraduate surveys provided by tribal colleges and universities.

For example, hundreds of tribal constitutions and tribal corporate charters originated with the Indian Reorganization Act of 1934. These constitutions and charters are often called, rightly or wrongly, “model IRA” documents. Tribal constitutions and charters from Alaska to Michigan likely will share structural similarities, if not exactly the same provisions. All affected tribal leaders should understand why this is the case.

Another critical example is Indian treaty language. Tribes in the Great Lakes region and the Pacific Northwest entered into treaties that preserved rights to hunt, fish, and gather on lands no longer owned by the tribal parties. In 1868, several tribes from Montana to Arizona entered into treaties that include a provision commonly called a “bad men clause.” Modern federal courts interpreted these provisions largely to the benefit of tribal interests, sending federal and state agencies scrambling to implement and negotiate modern incarnations of these treaty rights with Indian nations. Tribal leaders and officials should be aware of the origins of these treaty rights and why, in some instances, these rights remain after 100 or 200 years of latency.

Each reservation and tribal history also has been affected in some part by the changes and eras of federal Indian law and policy. The United States has pursued often contradictory policies throughout American history. Many tribes entered into early treaties with the federal government that ceded massive acreages of Indian lands to the United States, and sometimes forced the removal of the tribes to western lands. Many tribes entered into treaties establishing large reservations later divided or shrunk by federal laws such as allotment statutes. Many tribes have been terminated and restored by Congress. Where tribal and reservation histories fit into these eras often affects modern tribal governance. Surveys in federal Indian law can provide this grounding to students at TCUs who are interested in tribal leadership and governance.

CONCLUSION

Tribal members and reservation residents likely know this already, but Indian law touches them and affects their daily lives in a manner unusual for most American citizens. As a tribal lawyer, I followed my tribal leader, manager, and employee clients around the reservation and the rest of the country to advise them on a wide variety of matters. I was amazed at how much law these nonlawyers had to learn to do their jobs effectively. Still, there is no doubt that they could have been better educated in Indian law. If they had taken Indian law courses from tribal colleges or universities, perhaps they would have become Indian lawyers themselves.

Miigwetch.

Matthew L.M. Fletcher is an enrolled member of the Grand Traverse Band of Ottawa and Chippewa Indians and a professor at the Michigan State University College of Law.


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