What Has Become of All the Native American Law Students?

Posted on Categories Legal Education, Public, Race & Law

Between 1990 and 2000, slightly more than 2,600 self-identified Native Americans graduated from ABA-accredited law schools. As a consequence, one might have expected the number of Native-American lawyers in the United States would have increased by about 2000 or so by the end of that decade. (The increase would be less than 2,600, since some of the Native Americans practicing in 1990 would have died or left the profession.) Shockingly, according to the United States Census, the actual increase in the number of Indian and Native-Alaskan lawyers in the United States was only 228, from 1502 to 1730.

So what happened to most of the Native-American law school graduates in the 1990’s? Did they fail the bar examination? Did they decide not to practice law? Did they leave the country? Or, were they not really Native Americans after all?

The answer appears to be the latter. A large number of law students in the 1990’s, who were not actually Native American, reported themselves as Indians or Eskimos on their law school applications and in the materials they filed with the Law School Admission Council (LSAC).

Was this simply a case of students willing to lie about their identity in hopes of receiving special treatment by law school admissions committees, or is there another explanation?

Part of the problem is that many Americans think of Native American as an ethnic category, rather than a citizenship status. Furthermore, it is apparently understood to be an ethnic classification that still follows the “one drop rule,” so that any person with a Native-American ancestor is a Native American. While certain types of racial ancestry carried with them negative stigmas and were usually denied, if possible, most white Americans seem happy to boast about their Indian ancestry, especially if the ancestor was a grandparent, or some more distant ancestor.

As a legal matter, these assumptions are completely without foundation. In Morton v. Mancari, 417 U.S. 535 (1974), the United States Supreme Court confirmed that Native-American status was not a purely racial matter, but was derived from membership in a tribe recognized by the federal government. Moreover, at least since the Indian Reorganization Act of 1934, 48 Stat. 984 (now 25 U.S.C. §§ 461-79 (1983)), authority to determine tribal membership was vested exclusively in the federally-recognized tribes themselves.

In other words, the only people who are Native American are those whose status is recognized by their tribe. All members of recognized tribes have Tribal Identification Numbers (which are similar to Social Security Numbers and are sometimes referred to as registration numbers).

Native American status is, therefore, a concrete matter of tribal citizenship and not an amorphous racial classification. Consequently, a law student without a Tribal Identification Number is technically not a Native American, no matter what her or his ancestry may be.

The law school totals reported by the American Bar Association are based on self-reported ethnicity claims filed at the time of application to law school. The Census totals, in contrast, are based on a more rigorous definition of Native American.

Whether or not this same pattern was duplicated in the first decade of the 21st century is not yet clear, as the United States Census Bureau has not yet released its figures for the number of Native-American lawyers in 2010 (or, for that matter, for any racial, ethnic, or citizenship group). However, signs point to the continuation of the same phenomenon.

According to American Bar Association statistics, obtained from the Law School Admission Council and the law schools, there were 3332 Native-American third-year law students enrolled in ABA-accredited law schools between the 2000-01 and 2009-10 academic years. While a few of these students may have failed to graduate or failed to pass the bar examination, their numbers suggest that the number of Native-American lawyers in the United States should have at least doubled during the past decade, and there is little reason at this time to believe that actually happened.

Native-American lawyer groups have been aware of this discrepancy for some time, and they have expressed anger at what they believe has been the unwarranted assertion of Native-American status by law school applicants who have no basis for such a claim, and at what they see as an unjustified willingness of law schools to accept such claims at face value. Even today, only a handful of law schools—Harvard is one—ask students that claim Native-American status to name the tribe with which they claim affiliation.

(For reporting purposes the American Bar Association counts “Native Americans” as part of the category of “minority law students,” and for the past three or four decades all law schools have been under pressure to admit more minority students. To achieve a more diverse student body, most law schools will accept minority students with lower college grades or LSAT scores than normally expected of admitted students. Consequently, applicants who can claim to be a minority student have a strategic advantage when it comes to law school admissions.)

Concern that numbers inflated by the presence of pseudo-Native Americans were masking the fact that very few real Native Americans were attending law school in the United States, the leading Indian bar association finally decided to take action. On April 8, 2008, the National Native American Bar Association (NNABA) adopted a resolution denouncing the fraudulent self-identification of law school applicants as Native Americans.

The NNABA also expressed the belief that many of those who claimed to be Native Americans not only lacked a formal tribal affiliation but lacked any Native-American heritage whatsoever. As a solution, it called upon the LSAC to require law school applicants claiming Native-American status to list their tribal affiliation and Tribal Identification Number when they register with the LSAC as part of the application process.

After publicizing its claims in a number of different venues, in late 2010 and early 2011, the NNABA appealed directly to the American Bar Association’s House of Delegates and Committee on Legal Education and Admission to the Bar (of which the writer is a member) to endorse its proposals.

The efforts were successful, and on Monday, August 8, 2011, the ABA’s House of Delegates approved a resolution urging the Law School Admissions Council and ABA-approved law schools to require additional information from people who indicate on their registration for the Law School Admission Test and law school applications that they are Native American; specifically, they are to supply information about their tribal citizenship, tribal affiliation or their enrollment number. Applicants who don’t belong to a tribe recognized by the government but who wish to claim Native American status would have to provide a detailed “heritage statement.”

The ABA resolution has no binding effect, so it is still an open question as to how the LSAC and the law schools will respond to what NNABA president-elect Mary Smith refers to as “an issue of ethics and professional responsibility.”

7 thoughts on “What Has Become of All the Native American Law Students?”

  1. It is interesting that news this week has surfaced indicating that Harvard Law Professor and Massachusetts Senate candidate Elizabeth Warren is one of these “shadow Indians.”

    Although there is no evidence that Prof. Warren listed herself as a Native American on her law school applications, for 10 years (between 1986 and 1995), she listed herself as a “minority” law professor in the Association of American Law Schools Directory of Law Teachers.

    Her minority status supposedly stemmed from her partial Native American ancestry.

    When challenged as to the legitimacy of this claim Warren could only cite “family lore” that she was connected to the Cherokee and Delaware Indian tribes. However, further genealogical research has apparently established that her great-great-great grandmother on her mother’s side was Cherokee, thus making Warren 1/32 Native American.

    However, neither she nor any of her ancestors ever registered for tribal membership.

    The Warren episode illustrates how complicated the “Native American” label question really is. Although there has rarely been any benefit in American culture to being an actual Native American, it has long been a badge of pride to be able to claim to be “Part-Native American” or to have “some Native American blood.”

    Warren is just one of many caucasion Americans who happily apply the old “one drop” rule of racial ancestry in order to label themselves “Indian.” And when it comes time to apply to law school, they indentify themselves as being of Native American ancestry, which is not only cool, but also likely to give them an affirmative action boost in the application process.

    Of course, such an approach is diametrically opposed to the views of those like the members of the National Native American Bar Association who view “Native American” as a specific legal status and not a cultural label.

  2. For her or the person who done the genealogical research to prove that she is 1/32 Cherokee they would have to have records which substantiated that claim. I would like to see those records published. If the degree of indian can be established than she shouldn’t have any problem applying for tribal membership. Cherokee-J Mathis

  3. One should not mislead people to believe that if they can prove a blood quantum of 1/32nd they are eligible for enrollment to a tribe. Perhaps the Cherokee enroll at that level but very few other tribes enroll below 1/4 blood quantum. We also would consider a person of this low quantum “a descendant” and not eligible to be enrolled. I just want that to be clear, because there is always an issue of people seeking enrollment under the impression that somewhere in the distant past there was a Native ancestor.
    Ojibwe, Wisconsin

  4. Of course, such an approach is diametrically opposed to the views of those like the members of the National Native American Bar Association who view “Native American” as a specific legal status and not a cultural label.

  5. The decision in Morton v. Mancari was concerning hiring in the BIA. It is established policy of the BIA to provide a preference for hiring Indians, one that was not overturned by the Civil Rights Act as stated in the opinion. One can assume, that through the plenary power of Congress, that this may also be extended to all hiring within the Federal Government. However, nothing in the decision points to a broader definition of who is an Indian or who may claim to be Indian for purposes beyond the government. Such a decision would, in fact, conflict with the First Amendment and would deny individuals the right of self identification. That right is not, however, in conflict with the sovereignty of the tribes as they may still determine their membership as they see fit. The US Census also allows for self identification and does not provide any criterion that must be met. This has been linked to the upsurge in the population following their decision to allow individuals to select multiple racial categories. I will note, however, that the IACA does use a strict definition of who is Indian for purposes of selling as “Indian made”. I would question if that can also stand up to further legal scrutiny.

    1. True, it was an employment case and had nothing to do with ethnicity vs. legal standing of tribal membership. It is important to note too that many tribes do not allow membership of those who may have a very high percentage of Native blood, but do not fit into patrilineal or matrilinial situations, a child who is of Cherokee decent, since the legal attachment to the tribe is thru the mother, may be left out even if Dad is full blood Cherokee. This is very unreasonable for college admission. Children should not be denied equal access due to a technicality.

  6. The idea that another sovereign power can impose it’s will upon another sovereign nation to force define it’s population is insane, racist, and disgusting to witness. DNA can only ever be the deciding factor as it advances into the future it will be infallible. My name is Adair, a prominent name among the Cherokee. My family branch hid behind white names, as white settlers in Alabama. So in this definition that the Native American Bar association is choosing to adopt says I am not Native because my ancestors fled cruel oppression and did not trust the US government? Hypocrisy at it’s finest considering the three federally recognized Cherokee Tribes are delineated as such because of the various mistrust placed in the US by the elders. The 1968 Civil Rights act specifically mentioned those with half breed lineage as being the most vulnerable among us. This article is no different, as each tribe clings to it’s master and shows it has no sovereignty or doesn’t understand what it is. Maybe they do not want more citizens due to tribal payouts or back alley deals from the US government to not increase their population because that is the basis for federal help? -I wouldn’t know I am not native so my opinion doesn’t matter

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