Native American Attorneys: Small in Number, Not in Influence

When leaders in law discuss ways to springboard success for diverse attorneys, usually the needs of women, African Americans, Hispanics, Asian Pacific Americans, and gays and lesbians are brought to the table. Although the legal profession has made some progress in increasing the number of women and minority attorneys in higher levels of law, there is one ethnic group who has not yet shared in that accomplishment: Native Americans. While Native Americans are one of the smallest ethnic groups in the nation today—making up a little less than one percent of the total population, according to 2004 estimated numbers from the U.S. Census Bureau¹—their representation in law is infinitesimal. In a recent article, the American Bar Association ascertained that of the one million lawyers in the United States, only 3.9 percent are African American, 3.3 percent are Latino, 3.9 percent are Asian American, while just 0.3 percent are American Indian.²

Increasing Visibility
"When people talk about diversity, Native Americans are mostly overlooked because our numbers are so small. It seems as if we aren't even on the radar screen. The term I use for us is 'the invisible minority,'" says Denette Mouser, assistant general counsel at Wal-Mart Stores, Inc., and a board member of the National Native American Bar Association (NNABA).

"Ordinarily, African Americans, Asian Pacific Americans, and Hispanics come to mind, but unfortunately we don't hear much about Indians. Many times people just don't 'see' Native Americans in their midst. Some of that has to do with the blood quantum required to be Native American—it's very fractionalized. Because of that fractionalized blood quantum, the way many Native Americans look isn't in keeping with the public's expectation," says Mouser.

What are the factors that keep Native Americans out of the legal profession, and what can leaders in diversity and law do to help? Mouser and several other Native American attorneys shared their personal and professional experiences to shed light on the roadblocks that aspiring Native American lawyers may face and how those barriers may be overcome.

"For me, one answer is pipelining Native American students. I'm a big proponent," says Mouser, a citizen of the Muscogee (Creek) Nation who also has Cherokee heritage. "Currently the focus often is only to make sure students finish high school, and later we can work on college and post-graduate degrees, where the numbers are very low. I hope to see that focus moving toward improving the number of Native American students in post-graduate programs in future generations."

Further statistics bolster Mouser's continuing enthusiasm. According to the American Bar Association, the number of full-time Native American law students almost doubled from a lackluster 554 from 1990 through 1991 to 1,048 from 2004 through 2005.³ Although these numbers have doubled, in comparison to other minority groups and the majority, they are unquestionably low.

Before joining Wal-Mart's employment litigation group, Mouser was a trial attorney at Godwin Gruber, LLP (now known as Godwin Pappas Langley Ronquillo, LLP) and at Locke Liddell & Sapp LLP, both in Dallas. As a student at the University of Oklahoma College of Law, she assumed that she would come out and find work as the in-house counsel of an oil and gas company (a field in which she was acquainted previously as an executive secretary), but the adrenaline rush of the moot court experience led her elsewhere. One of those other places was the Supreme Court of her tribe, where Mouser finds time to sit as a Justice.

Tribes are sovereign entities and make their own laws. Of the over 560 federally recognized tribes, about 275 have their own courts.⁴ According to Mouser, in the Muscogee (Creek) Nation the judicial branch is populated by a District Court that hears all matter of cases of family law, misdemeanor criminal law, and general civil law, and the Supreme Court, which hears all appeals and retains original jurisdiction for the tribe's constitutional disputes. An attorney must be admitted to the Muscogee Nation Bar to practice in their courts—although some tribes require only a lay advocate license.

"Sitting on the Court is an honor," says Mouser. "It offers an opportunity to serve my tribe, and another way to keep my Indian heritage alive in my life."

"When people talk about diversity, Native Americans are mostly overlooked because our numbers are so small. It seems as if we aren't even on the radar screen. The term I use for us is 'the invisible minority.'"

—Denette Mouser

Finding Himself
Native American attorneys are usually the first in their family to attend college. Often they receive stipends from their tribes to help with educational costs. However, the amounts vary significantly depending upon the wealth of the tribe. Throughout their careers, many serve as an interface between Indian culture and corporate America or the federal government.

When speaking to groups of young students, Barry Brandon, senior vice president and general counsel of Seneca Gaming Corporation, repeats the same story. He explains to these students that for him, becoming a lawyer was a search to discover his own identity.

Early on, as an enrolled member of the Oklahoma-based Muscogee (Creek) Nation, Brandon wanted to understand his place in society and his unique relationship to the federal government. Even as a boy growing up in Oklahoma and later in a suburb of Seattle, Wash., Brandon was aware of being different from his friends.

"Looking at my dark skin and almond eyes, kids asked: 'What are you? Are you Mexican? Japanese?,'" remembers Brandon. "From a young age, that prompted me to ask a lot of questions about my background. Coupled with a close relationship with my Creek grandmother, it made me curious about what it meant to be an Indian."

Throughout his childhood, Brandon's grandmother recounted stories of the injustices committed against Creek Indians earlier in the 20th century. When she was a girl, she was extracted from her parents' home and placed in a state-run boarding school, where she was forcibly assimilated into a strict brand of white culture and punished for speaking in her native tongue. Essentially, she was taught not to be a Native American.

After learning he was accepted to law school at the University of Washington in Seattle, Wash., the first person Brandon called was his grandmother. Her first words were: "Get my land back." She was speaking for many tribes when she asked her grandson to use his degree to benefit Native Americans, and according to Brandon, her words shaped his entire career.

In his first month as a young attorney at the Department of Justice in 1994, Brandon won a case that involved returning land belonging to the Seneca Nation of Indians in Salamanca, N.Y. He was so successful that the clan mother of the Bear Clan of the Seneca Nation adopted him. Coincidentally, the grandfather Brandon never knew was a full-blood Seneca.

Prior to getting on board with Seneca Gaming Corporation, Brandon was a partner at Akin Gump Strauss Hauer & Feld LLP in Washington, DC, where he maintained a national practice representing tribes on gaming, land, and water rights, as well as some lobbying. He initially went to the firm with the idea of assisting with an Indian practice.

For Brandon, working with tribes has been very gratifying, and, according to him, tribal members have been pleased as well: "Imagine, tribal members—who for many years have been used to seeing non-Indian attorneys come to represent them, and perhaps feeling some skepticism to what their true motivations were—actually seeing another brown face who is also a tribal member enrolled in a federally recognized tribe coming to assist them with legal matters. It has proved very meaningful."

"There are not many degrees of separation in the legal community. The circle is small," says Brandon. "My Indian blood lent to my credibility, and a trust factor evolved, allowing for tribal leadership to feel comfortable with discussing certain things with me and taking my legal recommendations. My coming to the Seneca Nation is the result of that and hard work." Seneca Gaming Corporation is the parent corporation to three subsidiary corporations, each of which is authorized by tribal charter as individual casinos in New York State. The casinos in Niagara Falls and Salamanca are currently operational, and recently in Buffalo, ground was broken on a third. The tribe's 7,400 members wholly own the corporation.

"Seneca Gaming came out of a compact that the tribe negotiated with the state of New York, which is the usual threshold requirement of tribes that want to game," Brandon explains. "It's required that tribal leadership sit down with the state where they reside and reach an agreement as to the scope of gaming, regulatory functions, and licensing issues. What made our compact extremely unique is that the Seneca Nation of Indians not only negotiated for a casino to be built on reservation land, but they also negotiated to go off the reservation and open casinos on what once were indigenous lands. We're permitted by federal law to build and operate casinos on those territories. This has never been done before."

Over the last five years, Brandon has moved from the compact to actually building and operating casinos—starting as an outside attorney and then in-house as general counsel for the last year and a half. At the time of this interview, Seneca Nation Gaming was just days away from opening a 605-room luxury hotel and more restaurants to complement the casinos in Niagara Falls. According to Brandon, the corporation employs over 4,000 people, and if it were possible to sell the corporation on the open market, it would be worth well in excess of one billion dollars. As general counsel, Brandon has the same responsibilities of any general counsel at a comparably sized company. He provides legal advice to senior management and the board of directors—who are all Seneca Nation citizens—on a wide range of issues, including litigation, labor, and human resources. All company contracts route their way through the general counsel's office as well.

Brandon confirms that on paper, the fortunes of the Seneca Nation of Indians have risen dramatically. At this time, the nation has decided to reinvest in itself; if done wisely, the future is more than promising.

"As I've gone through law school and practiced law, my grandmother's words have come to mean so much more to me," says Brandon. "To some extent, I've come to understand exactly how profound they were."

"As a child, I always wondered how Columbus could have discovered America if my ancestors were here already. Even now, as an adult, I feel discounted as an American on October 12."

—Lisa Stravinskas

Living a Legacy
Lisa Stravinskas, vice president of corporate compliance at Rockford Health System, traces her American Native heritage through her father and is a citizen of the Delaware Tribe. The tribe requires only one-sixteenth Native American blood to be a member; Stravinskas is one-eighth. Although her father died when she was still a baby and her non-Indian stepfather adopted her, Stravinskas and her siblings have always taken pride in their Native American background. According to the Oklahoma-born Stravinskas, she always feels a little uneasy on Columbus Day.

"As a child, I always wondered how Columbus could have discovered America if my ancestors were here already. Even now, as an adult, I feel discounted as an American on October 12," says Stravinskas. "I am pleased that my children's school questions the ethnocentrism of this 'celebration' by raising that very question, even with the youngest levels of students."

In pursuing her law degree at the University of Illinois, being Native American was a definite asset for Stravinskas: She was offered three years' tuition based on her heritage. Stravinskas accepted the minority-earmarked scholarship for her first year, but after that, she returned it to the school and took on a teaching position so someone else might benefit from the allotted dollars.

"I enjoyed teaching," says Stravinskas. "And I thought there might be someone else who could use the opportunity, too; perhaps someone who grew up on a reservation or without supportive parents like mine who encouraged me to pursue higher education."

At Rockford Health System, the largest private employer in the Rockford, Ill., region, Stravinskas volunteers as a diversity facilitator. After hearing a colleague make disparaging remarks about Native Americans, she was propelled to action.

"When I heard that woman say, 'Even an Indian could do it,' I was stunned, and said nothing," recalls Stravinskas. "Today, I would handle it differently. I would do it in a way that wouldn't embarrass her, but I'd definitely explore it. Today, I make a point to open conversations with peers and explain to them what it means to identify with a minority group and to be hurt by words. I have had the opportunity to open some eyes."

Reaching Out
"Working for tribes motivates people to go to law school, particularly if you want to help other Indian people get ahead," says Kathleen Supernaw, in-house counsel of the Osage Nation. "I worked for Indian tribes for 15 years before going to law school [at the University of Oklahoma]. Gradually I had become interested in case law, Indian law, and federal regulations, and thought a law degree would be helpful. I tell you, law school is not something I had in mind since kindergarten."

With a broad background in Indian affairs and knowledge of administrative processes, Supernaw is the perfect fit to assist with the day-to-day business operations of the Osage Nation, for whom, like most tribes, the workings of the federal government is a mystery. As in-house counsel, Supernaw advises the Chief and Tribal Council as well as the tribal program directors who are in need of varying legal advice. She is generous with her time and services, because the tribe is exercising its sovereignty and is in particular need of someone with a grasp of tribal business.

When not assisting the Osage Nation, Supernaw is director of the Muscogee (Creek) Nation's legal program at the University of Tulsa College of Law. A Muscogee (Creek) citizen, Supernaw takes pride in her tribe's funding of a student-staffed legal clinic that provides legal services to Creeks, primarily in tribal court.

"Ever since I was in law school, I've tried to be a mentor," says Supernaw. "I'll help in any way I can. Every time another Native American pursues higher education, I'm encouraged."

Making the Team
In addition to her many responsibilities, Anne Mourney, senior counsel at Wal-Mart Stores, Inc., is occasionally called upon to represent her employer at gatherings of various national associations, including the Federal Bar Association Indian Law Conference, the Asian Pacific American Bar Association, and the Corporate Counsel Women of Color. Most days, Mourney spends her time at Wal-Mart busy with commercial litigation.

She is a citizen of the Choctaw Nation, but very few people would guess this upon meeting Mourney. Like many Native American-enrolled tribe members, Mourney's Indian blood comes from only one grandparent (her maternal grandmother), and, consequently, she more resembles her other forebears, who were white.

"Part of what I enjoy about attending these minority association meetings is that I get a chance to demonstrate to people that they can't necessarily ascertain or judge people's backgrounds or ethnicity by their appearance," says Mourney. "It's very interesting, because sometimes I will get looks like, 'What are you doing here?' And then later, after they learn who I am, I receive a warmer reception. For many like me, this is part of the Native American experience."

Mourney spent eight years working at the University of Arkansas in the general counsel's office before starting at the university's law school. Working up close with the associate general counsel, Mourney benefited from her informal mentoring and learned what it entails to be a woman in the law profession. As a Native American who has embraced her heritage all her life, Mourney chose a summer clerkship during law school with the Cherokee Nation in Tahlequah, Okla. and learned what is involved in practicing law for the government of an Indian Nation.

"Before coming in-house to Wal-Mart, I never worked with or across the table from another Native American attorney while working in private practice," says Chad Allen, assistant general counsel, Corporate Division, at Wal-Mart. "But here at Wal-Mart, there are a few of us. The company really strives for its associates to reflect Wal-Mart's customers more closely."

Enrolled in the Grand Traverse Band of Ottawa and Chippewa Indians, Allen grew up about 30 miles from the reservation located in Peshawbestown, Mich., but it seemed like a world away. As a high school basketball star, he was deeply involved in the mainstream teen scene of Traverse City, Mich. An athletic scholarship took him to Southern Methodist University in Dallas, where during the early 1990s he was one of only four Native Americans playing basketball at the division one level.

In addition to providing legal support to Wal-Mart's financial services group, which includes legal oversight of the various financial products that are offered at Wal-Mart, Allen represents Wal-Mart at Indian Law community conferences and the Federal Bar Association Indian Law Conference. "It's interesting to meet the attorneys who represent the tribes [the majority of whom are white], especially those who are Native American," says Allen. "We get a chance to discuss solutions for increasing the number of Native American attorneys and strengthening the representation that we currently already have."

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Patrick Folliard is a freelance writer based in Silver Spring, Md.

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NOTES

1. See American Community Survey—Ranking Tables, "Percent of the Total Population Who are American Indian and Alaska Native Alone: 2004" at http://factfinder.census.gov/servlet/….
2. See "Don't Let the Present Dictate the Future," American Bar Association, Business Law Today, (Nov./Dec. 2005) at http://www.abanet.org/buslaw/blt/2005-11-12/baynes.shtml.
3. See American Bar Association 2003 report on "Minority Enrollment 1971-2005" at http://www.abanet.org/legaled/statistics/ minstats.html.
4. See "Tribal Court History," The National Tribal Justice Resource Center at http://www.tribalresourcecenter.org/tribalcourts/history.asp.

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From the March/April 2006 issue of Diversity & The Bar^®