Monday, February 19, 2018

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

Parts I and II are available here and here
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III. The Solution

What can be done to adequately address the three distinct but intertwined problems outlined above? In order to adequately comply with the conditions of TOLA and VAWA and be able to address the sexual assault epidemic sweeping their reservations, tribes and the federal government will have to work together to find solutions that will enhance tribal sovereignty and ensure long term sustainability.

a. Funding

The first pressing issue is funding. While a minority of tribes have successfully engaged in profitable gaming enterprises, the majority are still reliant on federal government dollars to provide even the most basic services. With tribes having little to no discretionary money, Congress is going to have to step up and pass legislation that will fund the payment of lawyers that can represent indigent defendants. On July 1, 2013, South Dakota began to address its rural lawyer shortage by launching a program designed to offer financial incentives to recent graduates who are willing to move to the remote rural regions of the state. Under this program, participants would be entitled to “more than $13,000 a year for five years to practice in a rural area that has been identified as being underrepresented47.” This program is even modeled on similar programs that already exist within the federal government that are aimed at increasing the number of medical professionals in rural areas48. If the federal government would extend these programs to include legal professionals in underserved areas, it would go a long way towards easing the burden on tribes to find funding to hire lawyers.

It should also be mentioned however that an exact copy of the South Dakota program would not be sufficient for this problem. Since a $13,000 annual payment functions only as a subsidy, there is still a financial burden on the employer. For an idea of how much tribes would have to pay under this model, the average salary for an entry level public defender was $47,500 in 201049. This average does not take into account other fringe benefits that an employer could be expected to provide. Many firms, even public interest firms, provide generous benefits packages that can costs in the thousands of dollars for employers. In order to attract attorneys, it would be expected that tribes would offer similar compensation packages.

Since an investment in a single lawyer can cost a tribe thousands of dollars, it would stand to reason that exercising the extra jurisdiction allowed under the Tribal Law and Order Act and VAWA will be a substantial financial undertaking. In order to assist tribes that are not able to generate funding on their own, the federal government has to step up and provide more financial resources to tribes so this can become an attainable goal. The fallacy in suggesting this however is that it does nothing to address the earlier concern about tribes being overly dependent on the whims of federal government funding. The Tribal Law and Order Act begins to address these concerns by allowing the Legal Services Corporation to provide grants to tribes for non- felony offenses, this power however is misplaced. The Legal Services Corporation is frequently the subject of political battles and has frequently seen its funding dramatically cut and its existence threatened altogether. Allowing the LSC to provide grants is a good start but it still leaves tribes vulnerable to the whims of debate in Washington.

What should be done is the creation of an Indian Legal Services Unit within the Bureau of Indian Affairs (or Department of Justice) that would be primarily responsible for assisting tribes with complying with the provisions of the act that will afford them extra criminal jurisdiction. Given the legal history of tribal jurisdiction, a separate unit could be staffed by people who are experts in Indian Law who could even assist tribes as they attempt to comply with the act. How does this affect funding? In creating the unit, Congress has to make a commitment to fund it for at least five years. The legislation that creates the unit has to provide funding for a set period of time and this funding cannot be cut in budget negotiations. By allowing for an extended period of funding, the program can get started and begin providing funding to tribes without fear of losing money on a year to year basis. In order to prevent wasteful spending, the unit would only provide funding to tribes on a per-lawyer basis. In order to further incentivize working on a reservation and helping to overcome any barriers that may be related to training and learning new laws, the unit could also provide funding for any tribal bar exam related training. It can also provide support for new tribal lawyers who are attempting to learn the laws of a new tribal jurisdiction.

A separate unit would also assist with providing funding for law-trained judges. Since many tribes already share judges, this unit could also assist with recruiting already active tribal judges to work in underrepresented courts who may not otherwise be able to pay them. One way to structure this would be to simply have judges be employees of the federal government who are assigned to geographic “circuits,” which would be conscious of cultural differences between tribes. It would go without saying that this unit would have to have field offices on reservations so they could readily assist if any problems were to arise. The judges could work out of a regional field office and have that as their permanent office space or they could make other arrangements with the tribal entities.

b. Attracting Lawyers

The federal government would also do well to look at the model cultivated by Teach for America, a program which places high achieving college graduates in low income areas. While Teach for America acts only as a placing service, it does provide some lessons for how to direct people towards places that would be in need. Teach for America places students in some of the toughest schools in some of the toughest areas in the country and has a decent success rate at keeping people in their schools beyond the initial two year commitment. One methodology employed by Teach for America that would be useful for the federal government would be a centralized application that allows an applicant to apply and then be placed with an area in need of their assistance. This eliminates the information asymmetry that exists where applicants may not know of vacancies and thus never apply for them. Unlike Teach for America however, the federal government should not make any hiring decisions. Having this kind of service would be helpful because some of the more remote and impoverished reservations may not have an adequate web presence or even a way to announce openings. The lack of a web presence creates a situation in which many tribes may struggle attract attorneys who may otherwise be interested. After all, you cannot apply for a job that you do not know exists.

What are the logistics for how this would function? As mentioned above, a separate entity that deals exclusively with the compliance of this act should be created within the BIA or Department of Justice. A prospective applicant can go a website, choose whether or not to indicate a geographic preference and submit an application. An application can be taken even when no openings are posted. The applicant’s information can go into a central database, which all tribes will have access to. When a tribe wants to fill a vacancy, it can submit a posting to the website but also begin to review previously submitted applications. This process serves a couple of purposes. First of all, it creates a central database of people interested in Indian law, but it also creates a system where people may not otherwise seek out reservation jobs can submit an application. Submitting an application online that will be available to all is a lot easier than seeking out individual job openings. It also alleviates the financial burden that tribes would usually incur when attempting to advertise a job opening. Instead of committing financial resources to advertising an opening, a tribal entity could simply submit to a central database.

The Teach for America model also provides another lesson that the federal government would be wise to heed. Once in the program, Teach for America will provide no-interest loans to assist with relocation50. Relocation is a huge expense, particularly for someone moving to a completely new location that can be hundreds, if not thousands of miles of home. Teach for America also provide continued education and support to Corp members51. By providing these things to lawyers, it helps make the move to a reservation much more financially feasible and less isolating.

How successful is Teach for America? The results are mixed but slightly encouraging. A 2008 study conducted by the Harvard Graduate School of Education found that 43.6 percent of Corp members remained in their low-income placement beyond the initial two year commitment52. However, only 14.8 percent remained for more than four years53. It would be important for tribes to have consistency and low turnover. It is important for a couple of reasons. Perhaps most importantly, more experienced attorneys are likely to be better advocates. They have more experience, they know the judicial system and likely know the judges that they will be practicing in front of. It is also important because of the requirement that tribes have law trained judges. An experience tribal defense attorney could transition into being a judge later on in his or her career.

How can tribes address the turnover problem that Teach for America encounters? By introducing incentives to stay. The federal government already offers loan forgiveness for public service through the Public Service Loan Forgiveness program (PSLF), which allows for the forgiveness of student loans after 120 successful monthly payments as long the applicant is employed in a qualifying public service job54. Monthly payments are further indexed to ten percent of discretionary income55. Programs like this make it possible to work in the public interest without risking bankruptcy. It is no secret that law students graduate with tremendously high amounts of debt and often struggle to pay it back. For the federal government to attract people to work on reservations however, they have to introduce loan forgiveness programs that rival what is offered to medical professionals who undertake similar endeavors. For example, Indian Health Services offers $40,000 (or $20,000 per year) in student loan forgiveness to qualified professionals who make a two year commitment to working on a reservation56. To attract lawyers to work on the reservation, the federal government could consider a similar program. Offering $20,000 per year in loan forgiveness for every year that you work on the reservation would almost certainly result in loans being almost completely forgiven by the time the ten year forgiveness period arrives. By offering graduates a chance at an even shorter forgiveness schedule, working on a reservation becomes competitive with many other lines of employment that lawyers may seek. The price of investment per lawyer is even a relative bargain for the United States government. Even if you pay the median starting salary for a public defender, you are still investing less than $70,000 per year per attorney.

There are also alternative methods that could be used to fill these positions. These methods are less preferable however because they do little to address the problem of high turnover, but they do provide attorneys in the short term. There are various fellowships that allow one to work for a non-profit entity, often at the expense of an outside entity. These entities could form partnerships with agencies that may already work to provide legal assistance to tribal members.. The federal government could further amend the Legal Services Act to allow for existing legal aid organizations to provide criminal assistance to tribal members. This alleviates the burden of tribes to find someone to fill the position while still ensuring that it is filled. There are other grant programs but they often require matching funds to exist. The federal government could subsidize the matching funds in order to ensure that someone fills the job. By doing this, the federal government is essentially providing tribes with a free lawyer at half the cost to themselves. Since they would be competing with virtually every other public interest firm in the country, the federal government will need to publicize this information and provide incentives for people to pursue fellowships on Indian reservations. Extending the above loan forgiveness program to include people on one-year fellowships would be a tremendous start. The lack of attorneys in Indian Country is a crisis that needs a quick and swift response.

IV. Why Should We Invest?

This all sounds like a huge investment by the federal government. What obligation does the federal government have to invest this much money to help an entity comply with an act that it passed? In Seminole Nation v. United States57, the Court stated that “[u]nder a humane and self imposed policy which has found expression in many acts of Congress and numerous decisions of this Court, it has charged itself with moral obligations of the highest responsibility and trust58.” Inherent in this trust responsibility is the notion that the federal government should look out for the best interest of tribes. As outlined above, tribes are currently going through a crisis that threatens the safety of their citizens. The fix to this problem will require tremendous expense on behalf of the federal government and an actual honoring of the trust responsibility. The federal government has a responsibility to look out for the best interests of tribes and ensure their citizens are safe.

V. Summary and Conclusion

The best and most efficient way to address the shortage of lawyers in Indian Country is to create a unit within an existing governmental agency that deals exclusively with providing lawyers to Indian tribes. This agency could be created with legislation that will fully fund it for five years, after which a study will be done that will measure its effectiveness. The results of this study will inform Congress as to whether or not the agency can be renewed. Through its initial legislation, the agency will be endowed with funds that it will disburse to tribes to assist with the salary and benefits of attorneys. It will also fund and oversee the loan forgiveness programs that will be created. In regards to hiring judges, the agency will directly employ the judges and assign them to culturally sensitive circuits. The judges will rotate within that circuit.

The agency would also create a website that will allow participating tribes to advertise positions and take applications. While it will not act as a hiring agency, it will collect and disburse applications to tribes as they are requested. Once an attorney is hired, the agency will also fund any applicable training that the applicant might need, particularly in regards to passing any tribal bar exams. The agency will also use the aforementioned field offices as means to providing support to attorneys, who will almost certainly be working in very rural conditions.

It is important that we create programs that addressing the sexual assault epidemic in Indian Country. By creating a streamlined process for tribes to recruit and pay attorneys and judges, we can begin to give tribes the tools they need to address this issue. 

47 Black Hills State University Communications, Chief Justice Gilbertson discusses efforts to attract attorneys to state’s rural communities, BHSU News and Events, Oct. 18, 2013 http://www.bhsu.edu/AboutBHSU/NewsEvents/tabid/3454/articleType/ArticleView/articleId/5099/Chief- Justice-Gilbertson-discusses-efforts-to-attract-attorneys-to-states-rural-communities.aspx48 Id.
49 NALP Bulletin, New Findings on Salaries for Public Interest Attorneys, The Association for Legal Career Professionals, Sept. 2010 http://www.nalp.org/sept2010pubintsal
50 Snapshot of Salary and Additional Benefits, Teach for America, http://www.teachforamerica.org/why-teach-for- america/compensation-and-benefits (last visited May 5, 2014)
51 Investing in Leaders, Teach for America, http://www.teachforamerica.org/our-mission/investing-in-leaders (last visited May 5, 2014)

52 Study Finds Teach For America Teachers Stay in the Classroom Past Initial Commitment, Harvard Graduate School of Education (May 21, 2008), http://www.gse.harvard.edu/news_events/features/2008/05/21_project.php 53 Id.
54 Public Service Loan Forgiveness, U.S. Dep’t of Education, https://studentaid.ed.gov/repay-loans/forgiveness- cancellation/charts/public-service (last visited May 5, 2014)
55 Defined as 150% of the poverty line minus your salary.
56 Loan Repayment, Indian Health Services, https://www.ihs.gov/loanrepayment/ (last visited May 5, 2014)

57 316 U.S. 286 (1942) 58 Id. at 296-97


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