Diversity Requires More American Indian Lawyers and Judges

By Klint A. Cowan

The practices of federal Indian law and tribal law form a unique structure on the landscape of American law. The practices address legal issues arising from the existence and recognition of American Indian tribal governments, which pre-date the American revolution. These practice areas, unlike any other, deal specifically with the legal rights of persons classified as political minorities. Yet, despite the impact of federal law on the lives of American Indians, relatively few have become practicing attorneys. The bar should endeavor to address this deficiency by educating, mentoring and developing American Indian attorneys.

Law schools first recognized the need for American Indian law students in the 1960s. The modern effort to bring American Indians into the profession began in 1967, when professors at the University of New Mexico School of Law created an intensive summer program for American Indians planning to attend law school.1 The program, now known as the American Indian Law Center’s Pre-Law Summer Institute (PLSI), simulates the first semester of law school and gives American Indian students a chance to acclimate to the Socratic method and other issues faced by first-year law students.2 The institute has helped foster camaraderie among American Indian law students and has likely contributed to a rise in American Indian law graduates.3 Recognizing the need to bring more American Indians into the legal profession, law schools followed the PLSI example. The last two decades have seen the creation of many programs and scholarships aimed at American Indian students. For example, every law school in Oklahoma has developed comprehensive programs in federal Indian law and tribal law. So have 23 other law schools throughout the United States.4 

Oddly, based on census data through 2000, it was not at all clear that these efforts were working. In 1990, the U.S. Census identified 1,502 American Indian attorneys, equal to approximately 0.2 percent of the total number of attorneys. In 2000, there were 1,720, an increase of only 228.5 The situation may have improved more recently. By 2010, data from the American Community Survey identified 2,640 American Indian attorneys.6 But that data also showed that those attorneys composed no more than 0.3 percent of the profession. When attorneys identifying as American Indian and another race are considered, the data suggest that American Indians have accounted for no more than 0.6 percent of attorneys at any time during the past two decades.7 The dearth of American Indian attorneys is especially troubling when one considers that American Indians represent 1.7 percent of the U.S. population, nearly 3 times the percentage of American Indian attorneys.8

Moreover, despite the apparent upward trend between 2000 and 2010, the recent past has also demonstrated that even when qualified American Indian attorneys exist, there is no guarantee they will attain important posts such as judicial clerkships or judgeships. While there are attempts to rectify the first issue, there is unlikely to be significant progress on the number of American Indian judges (outside of tribal courts) in the near future. In an attempt to improve the numbers of American Indian judicial clerks, PLSI participates in the ABA Judicial Clerkship Program. That program began in 2001 as an effort to increase minority participation in the judicial clerkship application process.9 The goal of PLSI’s participation is to secure clerkships for its alumni.10 It is probably reasonable to expect clerkship positions held by American Indians to rise as bar associations and the judiciary implement these and other minority clerkship programs. Indeed, it would be difficult for the numbers of American Indian clerks to dip below the most recent data available. The last comprehensive study of judicial clerkship demographics showed an abysmal rate of clerks who identify as American Indian. That study, released in 2000 and covering a five-year period ending in 1998, found that American Indians composed between 0.1 percent and 0.6 percent of all federal, state, and local clerks.11

The number of American Indians serving as judges (outside of tribal courts), however, presents an even more significant problem for those who believe diversity is important in all areas of the law, including the bench. Further, given the important role of federal case law in the daily lives of American Indian people and their tribal governments, having American Indians on the federal bench seems especially vital. Nevertheless, according to the Federal Judicial Center, only two American Indians have ever served as federal judges.12 And President Obama’s attempts to raise that number have been met with criticism.

Between 2010 and 2013, the president nominated two American Indians to seats on federal district courts. On Dec. 17, 2011, the Senate returned the first nomination without action despite the nominee receiving an ABA Rating of Unanimously Qualified.13 In response the president nominated a non-Indian candidate for the position. The second American Indian nomination is pending.14 Further, when the president considered nominating an American Indian to the U.S. Court of Appeals for the 10th Circuit, a hostile reaction from Oklahoma’s congressional delegation appears to have derailed the nomination.15 The negative response is troubling because no American Indian has ever served on a federal appellate court.

The fields of federal Indian law and tribal law continue to grow. Over the last decade, many large firms have established Indian law practices.16 Much of this growth has been driven by the rise of tribal economies through gaming, energy and other resources. It has been aided by Congress’ termination in 2000 of the requirement that the Bureau of Indian Affairs approve tribal attorney contracts.17 But unless our profession makes more significant strides in growing the number of American Indian attorneys, and especially American Indian judges, we risk leaving behind the very people who are most affected by the development of these areas of law.

1. See http://ailc-inc.org/.
2. Id.
3. Id.
4. See Turtle Talk, Law Schools Offering Native Law Programs, available at http://turtletalk.files.wordpress.com/2009/04/law-schools-offering-indian-law-programs.pdf.
5. Lawrence Baca, American Indians and the “Box Checker” Phenomenon, IILP Review 2011: The State of Diversity and Inclusion in the Legal Profession 70 (2011) (discussing the discrepancy between Census Bureau data on the number of American Indian attorneys and law school data on the number of American Indian graduates). 
6. U.S. Census 2010, EEO 1r. Detailed Census Occupation by Sex and Race/Ethnicity for Residence Geography, EEO Tabulation 2006-2010 (5-year ACS data) by EEO Occupation Code 2100 (this survey estimated that individuals identifying as American Indians and another racial group accounted for an additional 3460 attorneys, or an additional 0.3% of all attorneys). This data is available at http://fact finder2.census.gov/.
7. ABA, Lawyer Demographics 2008 (2009) available at http://americanbar.org.
8. Tina Norris, Paula L. Vines, and Elizabeth M. Hoeffel, The American Indian and Alaska Native Population: 2010, 3, U.S. Census Bureau No. C2010BR-10 (Jan. 2012).
9. For more information on the ABA Judicial Clerkship Program, see http://www.americanbar.org/groups/diversity/diversity_pipeline/projects_initiatives.html. 
10. See http://ailc-inc.org/PLSI-Clerkship.html.
11. National Association for Law Placement, Courting Clerkships: The NALP Judicial Clerkship Study, Table 2 Racial/Ethnicity Distribution of Judicial Clerkships by Level of Clerkship: 1994-1998 (2000) available at http://www.nalp.org/clrktb1_8#02.. 
12. Federal Judicial Center, Diversity on the Bench, American Indian Judges on the Federal Courts, available at http://www.fjc.gov/servlet/nDsearch?race=American+Indian (identifying Frank Seay and Michael Burrage as the only federal judges to be identified as American Indians). See also The Oklahoman, “Three Confirmed To Be Judges, U.S. Marshal,” Archive ID 577837 (June 10, 1994) available at http://newsok.com/3-confirmed-to-be-judges-u.s.-marshalarticle/2468675/ ?page=1.
13. See http://www.judiciary.senate.gov/nominations/Materials 112thCongress.cfm (Arvo Mikkanen, Kiowa).
14. See http://www.judiciary.senate.gov/nominations/Materials 113thCongress.cfm (Diane Humetewa, Hopi).
15. Jim Meyers, Tulsa World, “Court Vacancy Causes Stir: The White House has not sought input from some key Oklahoma Decision Makers,” 2010 WLNR 10653891 (May 23, 2010) (recounting the negative response to the potential nomination of Keith Harper, Cherokee, to the 10th Circuit).
16. For instance, at least two members of the top 10 law firms by size have developed Indian law practices. Those are: K&L Gates, http://www.klgates.com/indian-law-practices/?nomobile=perm; and Greenberg Traurig, http://www.gtlaw.com/Experience/Practices/American-Indian-Law. 
17. Indian Tribal Economic Development and Contract Encouragement Act of 2000, P.L. 106-79, §§2, 3, 114 Stat. 46.

ABOUT THE AUTHOR

Klint Cowan is a director and shareholder in the Oklahoma City office of Fellers, Snider, Blankenship, Bailey & Tippens PC. His practice focuses on litigation in-cluding matters related to gaming and federal Indian law. He has represented several Indian tribes in litigation in federal, state and tribal court. He holds a J.D. with highest honors from TU and a master of law degree, with a distinction for his dissertation, from the University of Oxford.

Originally published in the Oklahoma Bar Journal-- May 17, 2014-- Vol. 85, No.14

Webcast encores are available for OBA/CLE seminars. View the catalog and sign up today.