Sunday, February 18, 2018

How the rural lawyer shortage affects the expansion of tribal sovereignty under VAWA - Part II

Yesterday - I began posting, in three parts, a paper that I wrote in law school where I analyzed how the rural lawyer shortage is endangering public safety in tribal communities by preventing tribes from exercising the supplemental jurisdiction offered by the 2013 reauthorization of the Violence Against Women Act. The paper was written in early 2014 so I apologize for any anachronisms, I've tried to correct them where I could. As I said yesterday, I was re-reading it and thought that the information contained within was very important to share and a great illustration of WHY the rural lawyer shortage is such a big problem. 

Part I is available here

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II. Exploring The Difficulties

The interplay between financial and locational resources will help influence what solutions the tribes should take in addressing these concerns. The solving of the sexual assault epidemic will first require figuring out how to solve these difficulties in order to take advantage of the enhanced sovereignty offered through the act. The solution to these problems will require in- depth analysis of historical and current issues facing tribes.

a. The Financial Problem

The paltry funding given by the Tribal Law and Order Act essentially leaves tribes with an unfunded opt-in. They are essentially given the option to take part in a program that can provide them with more rights, but at a cost that can be prohibitively expensive. Entities that already struggle with providing even the basic necessities are expected to pay even more money to hire people that will allow them to comply with the act so they can begin to exercise the enhanced sovereignty that will allow them to begin the crime epidemic that is currently plaguing the reservation.

Many tribes also struggle to even have the basic structures that will allow them to exert jurisdiction, and many of these tribes will struggle to pay for the law trained people that will allow them to be in compliance with the act. For example, many tribes lack even a court system. The lack of a court system could be an indicator of the lack of capital to undertake such an endeavor. Creating a court system requires paying to research and develop strategies for implementing a court into your current governmental structure. For these tribes, complying with this act will be prohibitively expensive and very difficult (if not impossible). For tribes with court systems, complying will still represent a great financial burden.

Some tribes will be able to tap into gaming revenue in order to fund expansion of services. Many are familiar with the Seminole, Mohegan and Pequot and their successes with generating revenue through gaming. However, these tribes are generally the exception to the rule. Many tribes are unable to engage in profitable gaming enterprises and for these tribes, gaming will never be an option to raise revenue. For many tribes, gaming may be their only option for economic development, a reality which has been accepted by both the Courts and Congress. In Chemehuevi Indian Tribe v. Wilson, the Court stated, “Congress recognized that for many tribes, gaming income ‘often means the difference between an adequate governmental program and a skeletal program that is totally dependent on Federal funding.27

For tribes who have gaming, it has also not been significantly successful in increasing tribal governmental revenue and many struggle to even break even with their gaming enterprises28. In fact, even for tribes who are able to raise money through gaming, the revenue has started to decline29. In order to generate the revenue needed to pay for law trained attorneys and judges, tribes will have to diversify their economic development and generate additional funding.

To examine the difficulty that tribes often have in generating revenue and the difficult choices that come with a limited budget, we can look to the Pine Ridge Indian Reservation, home of Oglala Sioux. Located in rural South Dakota, economic development can be prohibitively difficult for the tribe. Many tribes who successfully rely on economic development are either located in heavily populated regions (such as the Northeast) or have abundant natural resources. Pine Ridge in located in an area that has neither. In 2012, the Oglala Sioux had a budget of $80 million, $70 million of which came from the federal government30. This dependency on federal funding results in the tribe not having much budget leeway. For example, when the automatic spending cuts (negotiated through a previous debt ceiling deal) took effect on March 1st, tribes all over the country had to grapple with the fact that while the federal government exempted many of the programs that benefit the poor, they did not exercise the same care for programs that benefit American Indians31. Because of the automatic spending cuts, the tribe had to cut not only services to children and the elderly but also their tribal police force32. The inability to supply a sufficient police force is troubling enough, but expecting them to be able to hire additional lawyers would be wrong. Putting additional requirements on a tribe in that financial predicament can result in them being unable to fill that gap.

It is without dispute that tribes in the same situation as the Oglala Sioux are going to encounter an insurmountable amount of trouble raising enough revenue to comply with the act. For tribes already dependent on federal government, they are certainly unable to find the additional money needed to comply with the act. These tribes also face the geographical challenges that make engaging in economic development prohibitively difficult.

b. Attracting Attorneys

Even assuming that tribes were able to find the financial resources needed to hire attorneys, they would still face incredible difficulty attracting qualified candidates to assume the available positions. It should come as perhaps no surprise that the population of the United States is urbanizing and that the population of educated young professionals is urbanizing at an even faster rate than the rest of the American population. In many metropolitan areas, the center city population of young educated professionals is growing at a rate twice as fast as the rest of the metropolitan area33. Young educated people are also moving to certain types of cities, ones that are often based on a high-tech economy or that are young, vibrant college towns34. The legal profession is also urbanizing at a rate that is leaving rural areas as a whole behind. This problem has been noted as far back as the late 90s35. It should be much of a stretch to figure out why both of these trends would pose significant problems for tribes and their ability to attract young professionals to want to move to and work on the reservation.

Indian reservations are often located in the most remote parts of the United States and are hardly boom towns. Some of the most crushing poverty in the country can be found on Indian reservations. In fact, poverty on Indian reservations is so pervasive that it cannot be measured by the standard poverty rate definition that is often cited in studies to define how impoverished an area is. Reservations also have high rates of “extreme poverty,” which for a family of four is defined as making under $11,000 per year36. The number of people in extreme poverty on reservations is four times the national average37. Further, many citizens lack what many of us would consider basic amenities; fourteen percent lack electricity and twenty percent lack running water38. Perhaps the best way to fully understand the conditions on the impoverished reservations is to look at an actual example. In 2013, Washington Post reported on conditions on the Fort Peck Indian Reservation in Montana and described conditions in its populous city by stating that “[s]tray dogs wander the streets ... [it]has a few tiny markets, a bar and several gas stations. The streets are littered with the charred remains of buildings because there is no money to clear away debris after a fire39.” These conditions are in stark contrast to what the average young, educated professional is looking for in a new place.
The extreme poverty also feeds into other issues, as briefly touched above when the expense of hiring lawyers was discussed. The extreme nature of the poverty on reservations makes it so tribes cannot afford to provide basic services to their citizens. The inability to collect sufficient tax revenue creates a situation where funding is often short. The sector where this problem is most apparent and where it will be difficult to retain people long term is the education. When people look for a place to start a family, they often look to see what the local schools. Schools on Indian reservations are underfunded and heavily reliant on the federal government to subsidize what the local school board cannot. The average school in the United States receives only ten percent of its funding from the federal government, for a reservation school however, this number can be as high sixty percent40. A study conducted in 2003 by the United States Commission on Civil Rights found that Native students often face “deteriorating school facilities, underpaid teachers, weak curricula, discriminatory treatment [and] outdated learning tools41.”

There are other issues that would be problematic for attracting young people to move to the reservation. Housing is another great example of a barrier that tribes might encounter. In 2003, it was found that forty percent of reservation housing was considered inadequate, this compares unfavorably with just six percent nationwide42. A shortage of adequate housing would certainly hinder a place’s ability to make itself look appealing to new residents, particularly those who may have options elsewhere.

It is next important to consider where tribes are located and how that might pose a challenge to recruiting lawyers. Reservations are predominantly located west of Mississippi River, in the rural Southwest and Plains and far away from metropolitan areas. In the western half of the country, the remoteness is exacerbated by the population distribution of the United States. The Plains are sparsely populated and you could easily be a full day’s drive away from a major metropolitan area. In their attempts to attract lawyers, tribes will have to consider many of the struggles that other rural areas face when trying to attract lawyers.

Spatial isolation is a major barrier to overcome and functions as an additional barrier to tribes. As outlined above, young professionals are not just moving to urbanized areas, but are moving to center cities with a certain cultural vibe. Reservations are often located in far rural places that do not offer the same kind of lifestyle that one can find in a center city. It seem obvious that rural South Dakota or Montana would not offer the same nightlife and socialization opportunities as high tech cities like San Francisco or Raleigh or college towns like Ann Arbor or Madison. The legal profession as a whole is struggling with attracting lawyers to rural areas. Even in predominantly rural states, a majority of lawyers are clustered in just a few metropolitan areas43. For example, in Georgia, seventy percent of lawyers are in the Atlanta metropolitan area44. This of course leaves just thirty percent of the lawyer population for the rest of the state. In South Dakota, there are entire counties without lawyers, a situation which forces many clients to travel hours just to meet with legal counsel45. In that state, sixty five percent of lawyers are in the state’s sixty five metropolitan areas46. This points to the fact that lawyers are increasingly deciding that working for a firm in a city is preferable to working in rural America, a trend which will prove troubling to Indian tribes because they are competing for a small pool of lawyers. 

27 Matthew Fletcher, Tribal Economic Development: Nuts & Bolts, Michigan State University College of Law Indigenous Law and Policy Center Working Paper Series, Oct. 25, 2006 at 3-4 (citing Chemehuevi Indian Tribe v. Wilson, 987 F. Supp. 804, 808 n. 4 (N.D. Cal. 1997))
28 Id.

29 Stephen Singer, Report: Revenue growth slows at Indian casinos, falls behind non-tribal properties, Reno Gazette-Journal, Mar. 26, 2014 http://www.rgj.com/story/money/gaming/2014/03/26/report-revenue-growth- slows-at-indian-casinos-falls-behind-non-tribal-properties/6918583/30 Annie Lowrey, Pain on the Reservation, N.Y. Times, July 12, 2013 http://www.nytimes.com/2013/07/13/business/economy/us-budget-cuts-fall-heavily-on-american- indians.html?pagewanted=all&_r=0
31 Id. 32 Id.
33 Morgan Brennan, Downtowns: What's Behind America's Most Surprising Real Estate Boom, Forbes, Mar. 25, 2013 http://www.forbes.com/sites/morganbrennan/2013/03/25/emerging-downtowns-u-s-cities-revitalizing- business-districts-to-lure-young-professionals/34 William Frey, Young Adults Choose "Cool Cities" During Recession, Brookings Institute, Oct. 28, 2011 http://www.brookings.edu/blogs/up-front/posts/2011/10/28-young-adults-frey
35 Steven R. Sorenson, If They Won't Come, We've Failed, Wis. Law., APRIL 1998, at 5
36 Native reservations: poorest places in the country, Liberation, June 20, 2012
http://www.pslweb.org/liberationnews/newspaper/vol-6-no-9/native-reservations-poorest.html
37 Id.38 Id.39 Lyndsey Layton, In Montana, an Indian reservation’s children feel the impact of sequester’s cuts, Wash. Post, Mar. 21, 2013 http://www.washingtonpost.com/local/education/in-montana-an-indian-reservations-children-feel- the-impact-of-sequesters-cuts/2013/03/21/90b61722-916e-11e2-bdea-e32ad90da239_story.html
40 Id.41 A Quiet Crisis: Federal Funding and Unmet Needs in Indian Country, U.S. Comm’n on Civil Rights xi (2003) 42 Id. at 50

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