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.”