‘Native American Talent is Invaluable’: A Q&A With ABA President Mary Smith

High resolution head shot of Mary SmithThe American Bar Association recently released a qualitative study on the experiences of Native American women in the legal profession. The study is only the second national study focused on Native American attorneys and the first specifically focused on Native American women attorneys.

While younger generations of Native American women attorneys noted in the study that advancements have been made in terms of access to law school and legal careers, they still feel the same levels of bias, harassment, and isolation experienced by generations before them.

As one respondent noted, “I feel like Native American lawyers are relegated to footnotes, like a constant reminder that we are invisible.”

Things, however, may be shifting. Members of the Native American legal community recently celebrated a groundbreaking achievement, with the election of Mary Smith as President of the American Bar Association (ABA).

Smith, a board member and former CEO of the Indian Health Service and graduate of the University of Chicago Law School, is the first Native American to hold this role.

In honor of National Native American Heritage Month, we had the opportunity to speak with Smith about the ABA’s study, the experiences of Native American lawyers, and how the legal profession can better support their careers.

What obstacles are relegating Native American attorneys ‘to footnotes’?

The sentiments expressed in the “Excluded and Alone” study regarding the treatment of Native American women attorneys as invisible or marginalized are unfortunately rooted in real and observed experiences within the legal profession and the treatment of Native people in legal studies.

During my tenure as President of the National Native American Bar Association (NNABA), we recognized this pervasive issue and initiated the first-ever national study on the experiences of Native American attorneys. This groundbreaking study, published in 2015 and titled “The Pursuit of Inclusion: An In-Depth Exploration of the Experiences and Perspectives of Native American Attorneys in the Legal Profession,” was a critical step in acknowledging and addressing these challenges.

More recently, the American Bar Association Commission on Women in the Profession collaborated with NNABA to publish “Excluded and Alone: Examining the Experiences of Native American Women in the Law and a Path Towards Equity,” the second national study on this subject. This continued effort reflects our commitment to shedding light on the experiences of Native American attorneys.

An underlying, deeply concerning issue is a longstanding inclination to view Native communities as negligible due to their single-digit percentage share of the country’s overall population. This perception has connections to a complex and difficult history, which includes periods of physical and cultural genocides against Indigenous peoples.

Among the problems with this, however, is it ignores the reality that Native communities, including American Indians, Alaska Natives, Native Hawaiians, and indigenous peoples of U.S. territories, comprise millions of individuals. Moreover, these communities are among the fastest-growing demographic groups in the country.

By marginalizing these groups, the legal profession implicitly permits their exclusion from important inclusion efforts. This is unacceptable. The sheer size of the United States means that even populations that constitute a single-digit percentage represent millions of lives, perspectives, and potential contributions to the legal field.

Recognizing and actively working to include these voices is crucial not only for the profession’s integrity but also for upholding the principles of justice and equity upon which the legal profession is founded.

Or in short: no more putting Native people in footnotes! Native people deserve to be counted, included, and visible.

Have advancements been made in terms of recognizing the experiences of Native American attorneys?

Over the past 50 years, we have observed measurable progress in the visibility and inclusion of Native American professionals within the legal profession. This journey toward recognition and representation has been gradual, yet it includes significant milestones.

Though historically the legal profession lacked Native American representation in virtually any role, 55 years after the American Indian Movement, we can celebrate groundbreaking achievements such as the appointment of the first Native American law school dean (Dean Stacy Leeds, now at the Sandra Day O’Connor School of Law at Arizona State University), the election of the first two Native American women to Congress in 2018 (Representative Sharice Davids and former Representative Deb Haaland, both law school graduates), and the appointment of the first Native American to a cabinet position (current Secretary of the Interior Deb Haaland).

We also now have six Native district court judges in the federal system and two more who have been appointed by President Biden and are pending confirmation.

My own election as the first Native American woman to preside over the American Bar Association exemplifies this evolving landscape.

However, this journey is ongoing. Numerous “firsts” remain to be achieved, such as the appointment of a Native American in an appellate federal judicial role. A Native person in the federal appellate courts is long overdue.

Our successes and milestones, while highlighting progress, also underscore the continued need for greater inclusion and recognition within our legal system. Everyone has a role to play in achieving that progress, and the “Excluded and Alone” study provides detailed recommendations and calls to action to help guide the next steps across the legal ecosystem.

Do you think it’s hard for Native American attorneys to relate to other minority groups?

Native American communities possess unique histories, cultures, traditions, and customs that distinctly shape their experiences, particularly in the legal realm.

As the original inhabitants of the lands now known as the United States, Native Americans have a specific legal framework governing their individual political status, tribal sovereignty, and a spectrum of rights and duties for their benefit that must be upheld by the government.

This distinctive legal landscape addresses the specific needs of Native Americans in a way that is unique to their status as First Peoples.

That said, as minorities in various communities and professional environments, Native Americans encounter common challenges, similar to other minority groups, relating to inclusion, belonging, prejudices, biases, and equity. These shared experiences foster a sense of solidarity and empathy as well as a shared commitment to diversity, justice, equity, and inclusion with others.

Indeed, affinity bar communities have long recognized this and at the national level the national bars of color including the National Native American Bar Association have formally collaborated on policy for more than 30 years as a part of the Coalition of Bar Associations of Color (CBAC).

The ABA also fosters a space for national affinity bars to share and collaborate regularly, including a roundtable hosted by the President of the ABA, which I am honored to preside over this year.

It’s clear from those discussions that each community learns and benefits from the opportunity to collaborate and share with others. Together we will rise, and we see that in these partnerships.

How can the legal profession support the careers of Native American attorneys?

To effectively support the careers of Native American attorneys, the legal profession must begin with a foundational belief in the necessity of their inclusion. This conviction stems from the understanding that Native American talent is invaluable, and Native representation is crucial for maintaining the integrity and trust in our justice system and the rule of law, just as inclusion for all other peoples in our country is important for these reasons.

Recognizing this, we must then focus on raising awareness about the unique experiences, worldviews, values, and needs of Native American communities, while also identifying and dismantling the barriers that impede their inclusion and success within our profession.

The approach to fostering this inclusion will naturally differ from one organization to another, reflecting the diverse nature of Native American communities and the varying contexts of each organization. It is not a one-size-fits-all endeavor, as Native peoples are not monolithic, and organizations operate in distinct communities with their own opportunities and tools for action.

The “Excluded and Alone” study provides a wide range of ideas and strategies that organizations can adapt and implement according to their specific circumstances, which could mean support for Native people in a variety of ways – as an employer, vendor, and service provider, steward of licensing and ethical rules, admissions officer, purchaser of legal services, and more.

What remains universally essential, however, is for every organization within the legal profession to prioritize progress on Native American inclusion, commit to tangible actions, and incorporate accountability mechanisms for achieving those goals into their management structures.

By doing so, we can ensure that the legal profession not only recognizes the value of Native American attorneys but actively works to support and include them in the profession.

What advice do you have for Native Americans who are considering a career in the law?

My foremost advice to Native Americans aspiring to join the legal profession is to wholeheartedly believe in yourself. Trust in your inherent worthiness to shoulder the privileges and responsibilities that come with being a part of this noble profession.

Remember, your unique perspectives and insights are not just valuable, but essential in shaping a more inclusive and equitable legal landscape.

Embrace the idea that your work has the power to make a significant impact — not just within Native communities, but across all the lives you touch through your legal career. The journey may present its challenges, but your presence in the legal field will contribute to meaningful change and the betterment of society.

So, step forward with confidence, knowing that your journey in law is not just a personal achievement, but a stride toward a more just and diverse legal community. You are your ancestors’ wildest dreams come true and a step toward a bright, hopeful future.

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