Diversifying the bar: People with different backgrounds enhance courts for all, local judicial leaders say

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School of Law


Robert Silva has spent most of his summer studying for the North Dakota Bar exam, but he drove to Spirit Lake Wednesday to help the tribal court he worked for last summer.

"I've seen where I want to work and what I want to do," Silva said.

Silva aspires to work in Indian law, and he graduated from the UND Law School in the spring. At the end of July, he'll take the state bar exam, and when he, hopefully, passes, he will automatically become a member of the North Dakota State Bar Association.

It's recent graduates like Silva—who is half Mexican-American and also a member of the Fort Belknap Indian Community in Montana—that the State Bar Association of North Dakota is looking to join them in order to have more diversity that better reflects the community.

"The idea of inclusion and diversity isn't necessarily that if we don't have an Indian lawyer, then Indians won't be represented fairly," said James Grijalva, UND law professor and director of UND's Northern Plains Indian Law Center. "It's that the conversation is different and it's richer and more inclusive."

"If someone of color never sees anyone in the profession who is of color, you're going to have issues potentially of bias whether it be implicit or explicit," said Tony Weiler, executive director of the State Bar Association of North Dakota.

It's not just something only North Dakota is pushing for—it's nationwide. Last Tuesday, Minnesota Gov. Mark Dayton furthered appointed Anne McKeig as the first American Indian justice to the state's Supreme Court. Paulette Brown, who is the first African-American woman to be president of the American Bar Association, and Pro Football Hall of Fame member turned Minnesota Supreme Court justice Alan Page discussed the topic at the North Dakota Bar Association's annual meeting in Grand Forks in mid-June.

While diversity is important, the ultimate goal is a convergence of different backgrounds and experiences that lead to a better system to help the public, Grijalva said.

"If it's just a bunch of white guys, that's one life experience," District Judge Donovan Foughty said. "If it's done with a bunch of white guys and white women working together, that's a different life experience. But if you come as a minority ... it just creates a better mailu to work in the context so we have better understanding about each other."

Diversity shortage

Foughty and Grijalva admit North Dakota isn't the most diverse part of the country. However, there are definite groups, like Native Americans, that are integral to the state.

A self-reported survey of 523 people in 2010 determined 0.8 percent of state bar members are American Indian or Alaskan Native. The majority group was caucasian at 97 percent

But American Indians and Alaska Natives were just under 5.4 percent of the North Dakota population that year, according to the U.S. Census Bureau.

The report that looked at this breakdown, completed in 2012 by the North Dakota Commission to Study Racial and Ethnic Bias in the Courts, also determined that while there was an underrepresentation of minorities as attorneys, there was an overrepresentation of minorities in the jails, prison and arrests.

"Come to my court someday on a Monday morning," Foughty said, who presides in the Northeast Judicial District in Devils Lake. "What you're going to find is the courtroom is not all Native American, but certainly, it is half Native American. And who are the people that are making decisions about these folks who have been charged with a crime? It's all a bunch of white guys or white women."

It also helps bridge gaps. For instance, a lawyer who is used to working in state courts might not be familiar with practices or customs in tribal courts since the two have their own separate systems.

"Just as a female attorney might have more sensitivity to a female client's concerns or situations, so, too, a native attorney might have more sensitivity, particularly to the cultural aspects that come along," Grijalva said.

Silva's goal is to become a general counsel for a tribe, meaning he would handle various matters, for the tribe with federal and state courts.

"There are so few lawyers in Indian country, and this is such a concern for us," Grijalva said. "It's not just that it would be to have native lawyers in Grand Forks, who could represent native and non-native people better from that perspective, but we need people in Indian country who are trained in the legal systems, so they can better represent people in Indian country."

Steps to diversity

One way to attract younger people to become lawyers is to dispel the myth you have to have a political science undergraduate degree, Grijalva said.

Silva knew people in law school with music and English undergraduate degrees. Thinking you have to be on some pre-law track before going to law school might deter people from exploring a law career, Grijalva said, but that's just not the case anymore.

"I think a lot of getting into law school really is having the critical thinking," Silva said.

And if a person wants to work in tribal courts, they might not have to take the state bar exam, meaning they might not join the bar association. But the North Dakota bar still encourages people to join. Weiler is working on rolling out the Indian Law Section in the coming months, which will be open to Native Americans and non-Native Americans, lawyers and non-lawyers, to be able to create a space for people to connect and talk about issues that cross boundaries.

"We also partner with UND, and UND has one of the best Indian Law programs in the nation, so it's really a great attraction to native students, who are interested in going into Indian law," said Erin Shanley, associate chief judge at Standing Rock Tribal Court.

Last summer, Silva and Grijalva went to the North Dakota Indian Youth Leadership Academy at the United Tribes Technical College in Bismarck to talk about about the law school and Silva shared his journey to and through law school. In April, the law school hosted 21 prospective students from tribal colleges to sit in on classes, see a mock court demonstration and ask current law students about their experiences.

"The earlier you start the better. I think planting that seed really does matter," Silva said.

What also sets UND apart is its Indian Law Certificate, which lets students take specialized courses in Indian Law. It's "one of the only ones in the country" out of about half a dozen schools, Grijalva said.

"We attract a lot of students, both native and non-native, who are interested in practicing in the area because of that certificate," Grijalva said.

Plus, the school's Northern Plains Indian Law Center consults with area tribes and leaders to assist tribal governments in addressing legal issues that affect them.

As a recent grad, Silva is thrilled to see these initiatives and a push for more diversity. And he hopes the goals materialize, not just to include minorities, but to bring together people with all perspectives and backgrounds.

"I hope, not only that, it encourages people that are non-native lawyers to get involved in these issues. They're not mutually exclusive," Silva said. "There are things that you're interested in or something that you want to support, and so having allies is very beneficial for any group."