Turtle Talk

Lauren van Schilfgaarde has posted “The Statutory Influence of Tribal Lay Advocates,” a book chapter forthcoming in “Rethinking the Lawyer’s Monopoly: Access to Justice and Future of Legal Services,” on SSRN.

Here is the abstract:

There is a lawyer shortage in Indian country. Comparable to Indigenous people across the globe, Native Americans lack access to justice in strikingly disproportionate numbers compared to non-Natives. This is in part because typical access to justice initiatives tend to fail rural communities, and particularly Native communities. Firstly, there are not enough Native attorneys. While Native Americans are approximately 1.6 percent of the U.S. population, they represent only 0.3 percent of the legal profession, a disproportionality that has been observed as “stark beyond measure.” In addition to education-access barriers, this disproportionality is rooted in historical efforts to bar Natives from participating in the American legal system, including from serving on juries, from serving as witnesses, and even from U.S. citizenship. Secondly, Non-Native attorneys are not filling the gap. There are not enough resources to attract attorney representatives, including woefully underfunded court systems coupled with insufficient compensation and housing for attorneys. Yet, the legal needs in Indian country are extensive. The vestiges of historical oppression against Natives manifest in devastating metrics, including the country’s highest rates of poverty and unemployment.

Intriguingly however, access to justice initiatives within Indian country do not exclusively focus on expanding access to attorneys, largely because Tribal legal traditions are not wholly dependent on lawyers. For example, the practice of Tribal law, an intellectual tradition dating back millennia, does not center the lawyer, but instead centers community customs and expectations. Further, Native Americans’ practices in Tribal court, which reflect their long-established legal traditions and continue as recognized expressions of their Tribal sovereignty, were established without the formal equivalent of the lawyer. The hundreds of Tribal courts across Indian country operate around and with lawyers, but also with experts in Tribal customary law, like elders, and with traditional processes and remedies, like peacemaking and restorative reparations. Lawyers tend to have a crippling lack of familiarity with Tribal courts and a false sense that Tribal law is an inferior practice area. Thus, even assuming attorneys came flocking to the Tribal court, and the Tribe had sufficient funds and political will to hire them on behalf of the Tribe, a law school-trained, state-barred attorney may nevertheless still lack the necessary legal and cultural competence to meet the needs of the Tribal court.

Outside of Indian country, the broader access-to-justice movement is increasingly calling for options apart from lawyers. Given the historical evolution of Tribal courts and their creative innovations to accommodate non-lawyer practitioners, Tribal courts may offer some useful insight for broader access-to-justice initiatives.

This chapter examines Tribal codes to determine the extent to which Tribes have codified the eligibility of lay advocates to appear in Tribal courts, and how, if at all, Tribes have contended with ethical concerns surrounding lay advocates, including their competence and accountability. It reveals how Tribal codes expressly incorporate cultural elements into the lay advocate’s roles. By examining Tribal codes, this chapter provides insight into Tribal views on lay advocates’ ability to enhance Tribal members’ access to justice, and also sheds light on potential guardrails to ensure that lay advocates provide ethical and effective representation.