Tribal Legal Licensing of Attorneys, House Counsel Status, and The Opportunity to Redefine the JD Preferred Position and the Entire Lawyer Ecosystem

Nicholas J. Stamates January, 2025

I. Introduction: The Untapped Potential of Tribal Licensure

The right of Indian Tribes to license, regulate their internal affairs, and be their own jurisdictions of law separate from the U.S. has been recognized dating back to the Supreme Court’s ruling in Worcester v . Georgia , 31 U.S. 515 (1832) where state law was found unbinding on Cherokee lands.¹ This power includes the ability to license attorneys to practice law in tribal courts. Still, Tribes often have a hard time filling their staffing needs despite not needing state licenses for their professional workers.

This problem can partially be addressed by Tribes taking matters into their own hands and using licensure to acquire candidates who are in between their board examinations for employment. By doing so, tribes could help address the general shortage of state licensed professionals — an issue which affects not only Tribes, but rural communities and the private sector such as the insurance industry’s JD preferred roles. Additionally, Tribes could use Tribal licensure to provide an alternative pathway for the large number of U.S. law school graduates who have failed the bar exam.

Despite this amazing potential, the ability of Indian Tribes to license attorneys to practice law has gone unexamined outside of a few exceptions such as the Tribal Law and Order Act of 2010 which discussed the possibility. Rather, in recent history, Tribes have mostly only licensed state licensed attorneys and lay advocates within their court systems.²

However, in 2022, my experience joining Fidelity National Financial, a Fortune 500 Company located in Jacksonville, Florida, illustrated the full implications of this sovereign power. My application for “Authorized House Counsel status” in Florida was based on my admission to the Bar of the St. Croix Chippewa Indians of Wisconsin, a federally recognized Indian Tribe. I was a tribally licensed attorney, having negotiated for an attorney’s license from the Tribe as part of my contract. However, I was not state licensed or licensed as a lay advocate.

After a five-month process with the Florida Bar, I was admitted as an authorized house counsel in Florida on February 8, 2023, allowing me to serve as House Counsel at Fidelity National Financial. My experience and ultimate admission is but one example that reflects a refining of Indian Tribes as U.S. Jurisdictions of law, a status tribes have enjoyed since the Treaty Era of Indian Affairs.

II. Background: Tribally Licensed Attorneys from Past to Present

Tribal legal licensing is simultaneously a new reality and a concept with a strong tradition as Tribes have had legal systems since long before the U.S. existed.³ Thus, some background is needed to properly understand the history of Tribes licensing attorneys and the unique space American Indian Tribes occupy under Federal Law. American Indian Tribes are considered “domestic dependent nations,”⁴ which means they are sovereign nations that have seeded certain prerogatives to the U.S. government via treaty agreements or Congress’s plenary power over Indian Affairs. However, the remaining rights of a sovereign are still reserved to them, which includes the right to live under their own laws.⁵ This is a recognition of a legal, political, and historical reality: American Indian Tribes do not get their sovereignty from the U.S.. Rather, they were sovereigns long before even the Thirteen Colonies existed.⁶

This understanding of Federal Indian Law, that Tribes exist as a separate sovereign distinct from the federal government and the states, was recently reaffirmed by the U.S. Supreme Court in Puerto Rico v . Sanchez Valle , 579 U.S. 59, 136 S. Ct 1863 (2016). In Sanchez Valle , the Court distinguished the status of U.S. States and Indian Tribes from the status of the Commonwealth of Puerto Rico. The Court held that the Commonwealth of Puerto Rico does not have sovereignty outside of the sovereignty given to it by the status of U.S. federal government and thus the Double Jeopardy Clause of the Constitution was implicated in the case regarding a prosecution by both Puerto Rican and federal officials.⁷ However, unlike the states who bound themselves to the federal government through the U.S. Constitution upon joining the Union, the Indian Tribes retained this foreign element of their sovereignty through their nationality while becoming vassal nations of the U.S.. Essentially, though they are domestic and dependent, they are still sovereign nations. Thus, even today, the U.S. Constitution has not been applied to them by the congressional plenary power doctrine. However, certain provisions of the Bill of Rights have been incorporated through the Indian Civil Rights Act of 1968.⁸ Regardless, this structure leaves Indians who are citizens of a Tribe free to enjoy a form of tripartite citizenship: federal citizenship through their American nationality, state citizenship through their state of residence, and tribal citizenship through their enrollment as a member of the Tribal Nation.⁹

For Tribal attorney licensing, Tribes had this authority recognized going back over 200 years. The Cherokee Nation had an established Western-style court of justice all the way back in 1820 that was both acknowledged by the U.S. Federal Government and settled disputes involving the U.S.. As one North Carolina judge noted, “One example that illustrates recognition of the Cherokee court system is when the U.S., through its agents, appeared before the tribal courts in 1829, thereby submitting the U.S. to the jurisdiction of the Cherokee tribe.”¹⁰ These Courts continued after removal and would survive in their classical form until the statehood of Oklahoma.¹¹ So there is nothing new under the sun for attorney licensure from Indian Tribes, only lost knowledge of what they can do under their sovereign authority as jurisdictions of law.

The modern Tribal Court systems have their origins in the Indian Reorganization Act of 1934.¹² Since that time, Tribes in the modern era have made provisions for the practice of law in their courts of law which are the Tribal courts. Unfortunately, many Tribes currently employ cookie cutter language – likely from the attorneys who wrote the Tribal Court codes – regarding their admission standards. For example, the average Tribal Court code typically contains something akin to the following that is found in the codes of the Lac du Flambeau Tribe in Northern Wisconsin:

Practice Before the Court: (1) Admission requirement. No attorney or lay spokesman shall represent any person in any action before the Tribal Court unless such attorney or spokesman is duly admitted to practice before the Lac du Flambeau Tribal Court. (2) Procedure for Admission.(a) Any attorney wishing to practice before the Tribal Court shall file a written request for admission with the Clerk of Court, accompanied by (i) a Certificate of Good Standing issued from the State Bar or Supreme Court of all states in which the attorney is duly licensed to practice law.¹³

Sometimes the language is different surrounding certain terms such as “spokesman” versus “lay advocate.” But the general cookie cutter language remains the same for nearly all Tribal Courts in the U.S., requiring that an attorney before the Tribal Court be licensed by a state bar or federal court in order to be an attorney. I’d argue that this requirement is abhorrent to the concept of tribal sovereignty and is a direct contradiction of the historical record of Tribes licensing attorneys of their own accord. This cookie cutter language from a tribe in Northern Wisconsin is found as far south as the Florida Seminole Tribe in Florida,¹⁴ as northeastern as the Mashantucket Pequot Tribe in Connecticut,¹⁵ and as western as the Isleta Pueblo in New Mexico.¹⁶

However, there were and are starting to be differences within tribal codes that at least acknowledge the ability of Tribes to license attorneys. For example, the Blue Lake Rancheria in California and the Oneida Nation of New York¹⁷ acknowledge that Tribes can license attorneys in their code. The language from Blue Lake is especially clear on the subject:

“Lawyer” means a member of the Tribal bar of the Tribe or a person who is admitted, in good standing of, and eligible to practice before the bar of the Tribe, any U.S. court or the highest court of the District of Columbia or any state, territory or Tribe or is licensed to practice law in, or is admitted in good standing and eligible to practice before the bar of the highest court of, a foreign country or any political subdivision thereof.¹⁸

The most well-known example before my case with the Florida Bar and St. Croix comes from the Navajo Nation. The Navajo have dubbed those who graduate law school and pass the Navajo Nation Bar Exam “attorney candidates” for their internal legal needs, but they only upgrade the applicants to full attorneys if they pass a neighboring state bar exam.¹⁹

A question one might have is: why does the distinction between “attorneys” and “advocates” matter if both are full members of the Tribe’s Bar? I’d say from the Tribe’s internal perspective, it doesn’t matter. However, as far as other jurisdictions are concerned, “advocates” do not enjoy the same privileges as “attorneys” even though their licensure should entitle them to. Before the passage of the Tribal Law and Order Act of 2010, other jurisdictions did not consider a lay advocate “counsel” for purposes of the Sixth Amendment.²⁰ And In U.S. v. Alone , CR. 11-50031-JLV (D.S.D. Jul. 11, 2011), the Court ruled that the Act did not automatically upgrade lay advocates to tribally licensed attorneys.²¹ So the fact that Tribal Codes are written in this cookie cutter manner has a very tangible impact and it is limiting the recognition of tribal sovereignty by other jurisdictions of law. Furthermore, as demonstrated in the Alone case, opting for this cookie-cutter language does a real disservice to tribal members who have run-ins with the law since the 8th Circuit Court of Appeals may have sided with Alone if his Tribe had licensed his advocate as an attorney in the first place.

III. A Case Study: My Journey as a House Counsel for a Fortune 500 Company in Florida

A timely case study for breaking down the concept of tribal legal licensing of attorneys is that of my own experience in 2022. The case study provides a window into how my own personal experience set a major precedent in the State of Florida, as well as touches on my life at the time and my work at Fidelity National Financial. Some may ask why the latter is relevant material for a journal article. But to understand the full breadth of why such a major reform of the American Legal System is desirable, I think it is important to showcase the positive impact Tribal licensure had on my legal career and how it could impact other people in similar situations.

In August of 2022, I was vacationing in Maine before starting my first job out of law school at Fidelity National Financial. I had just finished touring Kennebunkport, Maine and Portsmouth, New Hampshire when I got the notification all law school graduates fear: I had failed the Bar Exam. Failing the Wisconsin Bar Exam was a cap to an era of my life I refer to as the “leaving Las Vegas period.” It came on the heels of an incredibly difficult year in 2021, and I thought I now would have to put my life on pause just as so many other law school graduates do when they struggle their first time taking the Bar. However, fate had something different in mind for me, and when I got back to my hotel room that night I received a phone call from Shelly Emery, the HR director for the St. Croix Chippewa Indians of Wisconsin. She wanted to interview me for a staff attorney position with the Tribe, and although I informed her of my bar results, she did not anticipate it being an issue for the Tribal Court.

On September 6, 2022, the day before I started at Fidelity, I inter-viewed with several individuals working in the St. Croix Tribal Court system including Chief Judge Steven Boulley,²² Tribal Attorney Ashley Duffy and Court Clerk Katy Merill.²³ The interview went well, and the Tribal Court decided to bring me on as an independent contractor. Though they still required an attorney who was a member of the Wisconsin State Bar, they also needed someone to work on Tribal Law matters internally and they felt I’d be a good fit because I had experience working with Tribal Governments.²⁴

We worked into my contract that I would be admitted to the St. Croix Tribal Bar as an attorney, which appealed to me for two reasons. One, I had two law review articles I anticipated publishing at the time – including one on the McGirt case – and I felt my odds of being published would be diminished without attorney status for the second article. Two, I knew from the Tribal Economic Development class I had taken with Kaighn Smith Jr²⁵ at the University of Michigan Law School that Tribal contracting was a legislative act by the Tribal Council. This meant that the attorney licensure was something I could legally negotiate for, at least theoretically. Additionally, if concerns were raised in Florida about me working in the law in other contexts, my status as a member of the St. Croix Bar would protect me from unauthorized practice of law charges.²⁶

I was sworn into the St. Croix Tribal Bar on October 13, 2022, with my legal assistant, Kristina Guy, notarizing my attorney oath. I replied to the email Fidelity sent my class of hires seeking attorney licensure information and provided mine from the St. Croix Chippewa Indians of Wisconsin. To my surprise, the company had me fill out the paperwork and paid the $1600 application fee²⁷ for what is known as “Authorized House Counsel’’ status in Florida based on my attorney status with the Tribe.²⁸ An interesting fact about Fidelity is that, while headquartered in Jacksonville,²⁹ most attorneys at the company do not seem to be members of Florida’s bar association. In fact, based on my personal experience with other company employees, I suspect that between both offices and the underwriting counsels stationed throughout the nation, the Company probably employs lawyers barred in all 50 states, Puerto Rico, Guam, Saipan and internationally through Mexico, Canada and FNF India. This is allowable since house counsel attorneys generally need to only be barred in one jurisdiction, state or territory, etc. depending on the rules of the state bar in question. However, they do need to be full members of the state bar itself.³⁰ Many attorneys in the Florida office who want to stay in the state long term become members of the Florida Bar. However, most young graduates are encouraged to pick whatever state bar interests them because, under Chapter 17 of the Rules Regulating the Florida Bar, any US or foreign jurisdiction attorney can have house counsel status.³¹

My application was submitted on October 14, 2022, and a few weeks passed before I received a call from Jeffery Picker,³² the Director of the Florida Bar Unlicensed Practice of Law division. He asked me a couple of questions, including if I had a law degree, if I was an attorney or lay advocate, and if my admission was a special admission of some kind since the St. Croix code defined an attorney as someone who was a member of a “state bar.” I replied affirmatively to all three and sent a copy of my contract with the Tribe, enabling Director Picker to confirm my attorney status with St. Croix. Unfortunately, he also concluded that there were concerns about whether I was licensed to practice law because this was a case of first impression and the legal status of American Indian Tribes was not something he was well versed in. For instance, he thought licensing of Indian tribes was akin to “housing authority boards”³³ and was unfamiliar with sovereignty in the U.S. outside of the state or federal government context. Director Picker was open minded though, and asked me to write a memo stating the legal authority that I believed entitled me to house counsel status in Florida.

So, I called up Professor Grant Christensen of Stetson University College of Law, Professor Matthew Fletcher of the University of Michigan Law School, and attorneys at Echo Hawk and Olsen, PLLC. I then partnered with Echo Hawk and Olsen associate attorney Emily Ferrell to develop a memo about the subject. The memo pointed to the Tribal Law and Order Act of 2010 as supporting the assertion that Indian Tribes are US Jurisdictions of law, and was submitted on January 20th, 2023.³⁴

A few weeks later while working remotely, I went to the Florida Bar website and discovered I was now on the list of authorized house counsels. I thought to myself, “ Nika , Nika , victory, victory.” Shortly thereafter, I realized this represented not only a victory for myself, but a victory for tribal sovereignty overall as Fidelity HR later told me the Florida Bar ruled the jurisdiction was a “U.S. Jurisdiction of law.” This was undoubtedly the proper outcome because Indian Tribes have been considered US Jurisdictions federally for some time.³⁵ But it was still encouraging to see Florida firmly adopt the position as well, especially given it could serve as a model for other states.

Finally, I was an in-house counsel for a Fortune 500 via my law license from the St. Croix Tribal Court. I won my title and my position through a refusal to submit to a system which I would later learn crushes the lives of so many people each year. My legal career has gone well since then which should illustrate that not having passed a state bar doesn’t necessarily disqualify one from potentially being an effective lawyer.

IV. Will other states follow Florida’s lead and create a pathway for more admissions possibilities?

My experience has broad implications as there are many law school graduates who end up in similar circumstances. Data suggests there are at least 150,000 unbarred JD holders across the country, with many haling from the much maligned “InfiLaw” system of for-profit law schools.³⁶ Critically for those who want to work outside Florida or an Indian Reservation, any state that uses the U.S. or foreign jurisdiction of law language for a house counsel admission, which comes from the model ABA rule 5.5d,³⁷ should feel persuaded to follow Florida’s lead. As the memo I submitted to the Florida Bar noted:

Even if Florida declines to recognize a Tribe and Tribal Court’s rules and orders regarding attorney licensing as an “U.S. jurisdiction other than Florida,” a Tribe should, at the very least, be recognized by Florida as a “foreign jurisdiction” for purposes of Chapter 17 of the Rules Regulating the Florida Bar.³⁸

The Florida Bar ruled that it was a U.S. Jurisdiction of law, and I credit Director Picker for being open-minded. However, even if his counterparts in other states are inclined to reach a different conclusion and say that Indian Tribes are a “foreign jurisdiction,” I believe having precedent that supports the alternative may have some persuasive value. There is also some old precedent on the state level supporting this view as well.³⁹ Furthermore, it doesn’t appear state bar associations would be able to stake out a position opposing this use of tribal licensure for house counsel status without directly banning tribal attorneys through their bar regulations – which I and others argue would be incredibly racist and disrespectful of tribal sovereignty⁴⁰ – or by removing foreign attorneys from eligibility for house counsel status via reverting to older language for house counsels. A handful of states use this older language. For example Alabama uses such language, resting eligibility in part on being “in good standing of the bar of the highest court of any State, possession, territory, or Commonwealth of the U.S., or the District of Columbia”⁴¹ However, there is precedent for Indian Tribes counting as U.S. territories for the purposes of federal statutes.⁴² And if not territories today, they at least have to be considered a U.S. “Commonwealth” because Congress declared Tribes a U.S. Jurisdiction of Law in the 2010 Tribal Law and Order Act if tribes did not have that status before for the purposes of reciprocity.⁴³

Furthermore, immigration court and other federal court admissions, such as federal district courts, could also admit tribally licensed attorneys as these courts use the language for standard of admission that states, “in good standing of the bar of the highest court of any State, possession, territory, or Commonwealth of the U.S., or the District of Columbia.”⁴⁴ This description differs from the regulatory language in Florida, requiring that an attorney “is either licensed to practice law in a U.S. jurisdiction other than Florida or admitted or otherwise authorized to practice as a lawyer or counselor of law or the equivalent in a foreign jurisdiction.”⁴⁵ However, the language for immigration and federal district courts is still broad enough to encompass an Indian Tribe as a U.S. Jurisdiction of Law. The JAG Corp is also likely an option for a tribally licensed attorney because they use the same language as most federal courts.⁴⁶

Nevertheless, at this point, there is very little jurisprudence related to the matter. The only time a tribally licensed attorney tried to be admitted to a federal court was O’Neil v . Gilman . In that case, the court denied admission to O’Neil, who represented himself as a tribally licensed attorney to the court.⁴⁷ However, that case centered around the Federal District Court for Montana Local Rule 83.1(b), which limited admission to the Federal District Court for Montana to members of the Montana state bar. Additionally, the Court acknowledged the Tribe’s authority to license an attorney.⁴⁸ So the question of whether a tribal attorney can appear in a federal court with a broader admission standard than the local state based on that attorney’s admission before an Indian Tribe remains unanswered.

V. The Horsemen of Reform: Public and Private Employers, Law School Graduates and State Bars, and the Tribes Themselves

In the following section, I will examine attorney licensure through the lens of employers in the private sector and public service organizations, law school graduates and the state bar associations, and American Indian Tribes. Tribal licensure has several implications for all these parties and could provide a means for improving legal representation in both tribal and rural communities.

A. The JD Preferred position provides incredible opportunity of tribal legal licensing for private sector and public sector employers to the financial benefit of Tribal communities

The JD preferred career track, in my view, is not unusual as many politicians, authors, and businessmen started their careers in the legal profession before moving on to something else or only practicing law part-time.⁴⁹ Exit opportunities for those who fail the state bar exam or leave the legal profession include compliance, the insurance industry, and land management professionals among others.⁵⁰ The insurance and compliance industries especially could benefit from the business implications of Tribal Legal licensing. Companies such as Geico, Progressive, State Farm and Liberty Mutual can turn all their JD preferred and JD advantage positions into full time attorney positions through house counsel status, and can do so without great risk of their talent leaving to practice at a law firm for a greater salary. Additionally, insurance companies can do this while keeping their state licensed attorneys in their legal departments separate.⁵¹

Law school graduates tend to have a higher IQ on average than your typical college graduate based on available data.⁵² However, employers, in my view at least, do not want to hire these unbarred JDs until about a decade after graduation if these JDs do not pass the bar. I suspect companies are scared of losing employees after the bar exam results are released. There are many positions with $60,000 to $75,000 starting salaries, such as claims adjusters and other adjacent fields who would love to hire lawyers if not for the fear of losing them to law firms who pay considerably more. “In fact, an argument can be made that JD holders are particularly appealing for these companies because their legal education has better trained them to do the job than the average college graduate.⁵³ Fidelity, for example, hires claims counsel instead of claims examiners for insurance work and is willing to pay lawyer rates for its claims department because of the complex nature of title insurance claims and the amount of money involved.

Tribal legal licensing arguably fills this niche in the market because Insurance companies can piggyback off Tribal legal licensing to turn its claims adjusters and claims examiners into claims counsels with all of the benefits of attorney-client and attorney-work product privileges. This conversion could be especially helpful for these insurance companies because claims-related litigation is expected to continually increase in the coming years.⁵⁴ This benefit may be worth employers paying their employees slightly more or even paying for their employees to attend law school.

In a certain sense, American Indian Tribes licensing attorneys could situate pursuing a JD as a more mid-career advancement endeavor akin to what we already see with MBAs.⁵⁵ This would be the case especially for state accredited law schools because state accredited law schools already offer online JD programs. The online, part-time nature of these law school programs allow mid-career professionals to take advantage of law school without having to leave their full-time positions in the insurance industry. This could expand their career earning potential just as MBA degrees do.⁵⁶ One might ask: why would Indian Tribes care about the economic motives behind big, national insurance companies like Allstate who don’t care about Indian Tribes? Well, normally they would not. However, tribal legal licensing could very well become a means of economic development as Indian Tribes make money granting law licenses to JDs working at these Insurance companies and elsewhere for an annual licensing fee. Indian Tribes pursue economic development to help provide funds for government services and their tribal citizens.⁵⁷ Tribal Legal Licensing could be a means for the right Tribes to fund their governmental services by providing, as demonstrated by my case study, a useful product that the private sector would be interested in for minimum start-up costs on the part of the Tribes and their court systems.

B. The shortage of attorneys in rural America and the law school graduates primed to take advantage of this employment opportunity through tribal legal licensing

The current attorney licensure system is doing nothing to address the shortage of attorneys in rural America outside of a few token efforts.⁵⁸ Rural America has been described as containing “legal deserts” with a striking shortage of attorneys for America’s rural population. Forty-six million people living in rural America – which represents roughly 20 percent of the U.S.’s population – are being serviced by 2 percent of the country’s lawyers.⁵⁹

The dwindling pool of lawyers in rural America is a general trend with a lot of data behind it. As noted by UC Davis Law scholar Lisa R. Pruitt: “What we’re seeing is that young lawyers are not as interested as prior generations were in going to rural places.”⁶⁰ As someone who has spent time in a rural area with my tribal clients, I understand why that may be the case. Rural areas often lack both the economic and social opportunities most young professionals yearn for.⁶¹ This has only gotten worse as rural America experiences significant economic decline⁶² leaving only the federal, state, and tribal lawyers left standing.⁶³ For example, ABA data has found that 40% of all counties in America have less than one attorney per 1,000 residents.⁶⁴ Furthermore, the data displays strikingly low numbers of legal professionals in rural Nebraska and Kansas with some counties having no lawyers at all.⁶⁵ What is clear is that neither the current system of legal education and state licensing, nor the practices of private law firms is sufficient to provide for the legal needs of Indian Tribes or non-Indians in rural America. However, the failings of the current system do provide room for reform through a combination of public service organizations, tribal legal licensing, and an untapped employment pool of of unbarred law school graduates who may be willing to move to rural America rather than retake the bar again.

This represents an opportunity for Indian Tribes and Rural America to work together by extending an opportunity to those in a tight spot professionally, which is in line with how rural areas have restocked their populations historically.⁶⁶ Instead of being jobless or vastly underpaid in a large city, these unbarred law school graduates could move to a rural area to become an attorney through an Indian Tribe with a Tribal law license. These law school graduates could then work in house for a public service organization, as a house counsel in a rural area, or for a shoestring’s operation through the tribal law license.

Tribal legal licensing could also provide a desperately needed solution for rural public service organizations as this attorney licensure likely opens house counsel status in the respective states where these organizations are located. Some of these states such as Colorado and Arizona, give very extensive privileges to out-of-jurisdiction attorneys who file paperwork with the Colorado and Arizona state bars in order to appear in state court for their client.⁶⁷ This means that public service organizations struggling to hire within their available budgets would be able to expand their applicant pool and fill those unfilled attorney positions at salaries they can afford. Even when state bars don’t extend such privileges and house counsel attorneys are limited to providing legal advice and representation to a client outside of the courtroom, tribal licensing would still be a great benefit for rural communities.⁶⁸ The house counsels in those jurisdictions would be able to meet a great deal of the need for legal services in these rural areas from contracting to negotiating settlements to estate planning, which mostly do not involve court appearances, and thus could be done completely in house. Additionally, public service organizations could hire new law school graduates at affordable rates because they are Public Service Loan Forgiveness “PSLF” eligible employers.⁶⁹ In effect, these new graduates would then be licensed as full attorneys by Indian Tribes in their Tribal Court systems and able to begin their careers. By working for PSLF eligible employers, these law school graduates can also begin working their way out of law school debt.⁷⁰ In addition, a tribally licensed attorney could get house counsel status for the tribal employer in the state jurisdiction and handle matters in tribal court through their attorney’s license. They also might be able to appear in state court on behalf of tribal citizens through the pro hac vice process in some states even without the house counsel status or through the house counsel status.⁷¹ Accordingly, tribal legal licensing opens up legal opportunities nationwide. The first step toward achieving this goal requires raising awareness. Tribes should spread the word to law schools, informing law students that Tribal licensure is a real option to start a legal career while they prepare to retake a bar exam. Naturally, this would increase interest for new law graduates to work in rural America, whether on an Indian Reservation or an American rural community. That could go a long way toward getting more lawyers in these communities.⁷² Law school graduates and employers need to know that this is a mutually beneficial solution and Tribes must seize on this opportunity of offering unbarred law school graduates some real power as attorneys.

C. Providing a Lifeline for the Unbarred Law Graduate

Research by Professor Jane Yakowitz in 2010 shows there are at least 150,000 unbarred JDs in the U.S. and that figure may be an understatement.⁷³ Recent law school graduates who are in between licensure after failing their first attempt at a state bar exam are a good demographic for a tribal law license.⁷⁴ This group of law school graduates may consider working for a rural or urban shoestrings public service organization as a tribally licensed attorney with house counsel status because it would allow them to still begin their legal careers and practice within the jurisdiction of their respective states or other territories.

The plight of law school graduates who never pass the bar exam is vastly understudied.⁷⁵ For example, more recent data in 2023 points to a much higher total than the already staggering 150,000 unbarred law school graduates, with an estimated 10% of law school graduates never passing a state bar.⁷⁶ Additionally, there are certain populations where we see an outsized representation of people who never passed the bar, which carries long-term consequences.⁷⁷ For example, 19% of those who never pass the Bar are African American and 13% are Hispanics.⁷⁸ For some law schools, such as Cooley Law School in Lansing, Michigan, the bar exam passage rates for the same period are considerably lower. More than 40 percent of Cooley’s 2019 graduates – the likely graduation year for most 2015 admit-tees because the vast majority were part time – failed to pass the bar within two years of graduation. And nearly two-thirds of them hadn’t found a full-time legal job 10 months after graduation.⁷⁹

Cooley was far from the only law school to find itself facing this plight as many of the Infilaw system law schools and other lower tiered law schools turned out thousands of students over the 2010s who were not able to pass the bar exam.⁸⁰ For example in 2020, The ABA notified ten law schools in “Faulkner, District of Columbia, Mississippi College, Inter-American (Puerto Rico), Cooley, South Dakota, Florida Coastal, John Marshall–Atlanta, Florida A&M, Pontifical Catholic (Puerto Rico), and Charleston”⁸¹ that they were out of compliance with the ABA standard of 75% of a law school graduation class passing the bar exam within two years of graduation.⁸²

Law schools, the ABA and the state bars might question the wisdom of barring law school graduates who were unable to pass a state bar exam. However, I think that there is more than enough room for some of these people to have long and fulfilling legal careers. Furthermore, with the high amount of non-dischargeable student loan debt that these students graduate with from ABA accredited law schools, the ABA and accredited law schools arguably carry a moral obligation to provide former students an alternative opportunity to prove themselves competent attorneys.⁸³

As for state bars, the state bar’s interest in protecting the public is legitimate even if executed in a flawed manner in many states.⁸⁴ However, Indian Tribes licensing attorneys, who then get to practice as house counsels in their respective states can help the goal of serving the public while maintaining certain guardrails. For example, House Counsels cannot open law firms and thus the public would only interact with these tribally licensed attorneys acting under the supervision of their organization. In effect, this creates an oversight process that can uphold the aims of the state bar. The fact that these organizations will be making ongoing determinations of the tribally-licensed attorneys’ abilities also provide a degree of oversight as well, especially given that they can use their normal hiring/firing power to demand accountability. Lastly, the fact that stakes in Tribal Court are often lower⁸⁵ should also help alleviate some concerns. For example, unlike in federal or state courts, tribally-licensed attorneys cannot represent clients facing the death penalty or long incarceration in prison since Tribal Courts lost the authority to hand down those sentences back in 1968 with the Indian Civil Rights Act.⁸⁶ Additionally, considering the types of cases that most regularly appear on the docket, the legal demands of the Tribal Court system can be met by people who have a strong legal education but are not gunning for first year associate positions at Big Law firms. It is a different legal economy between the latter group and those who would be interested in being tribally licensed attorneys. Tribal legal licensing puts Tribes in the position to recognize this reality and help provide attorneys who can work within the tribal court system for the benefit of both Tribes and law school graduates.⁸⁷

With that all said, it’s also important to recognize that some of the public safety goals of bar associations will still be served despite this proposed shift in licensing. So, while Tribal legal licensing is going to allow people deeply in debt to practice their trade in a way they can earn money and work experience, there will still be plenty of safeguards. For example, Tribal legal licensing will not allow these attorneys to open their own law firms in the state, outside the reservation, unless they pass the state bar exam or meet other regulatory requirements like extended proof of practice. Thus, the public would still be protected from legal malpractice. Additionally, an experienced general counsel is likely the one hiring many of these law school graduates. They should have the means to supervise these new lawyers, ensure quality work, and train law school graduates to be good attorneys. Most importantly, as house counsels, these attorneys will still be under the regulation of the state bar associations in terms of their practice. So, it is the best of both worlds. This change also wouldn’t be that much of a departure from some other well-regarded legal systems. For example, in France you only need to be admitted to the bar if you appear in court and want to take on private clients on a case-by-case basis.⁸⁸ Similarly, in Australia, only barristers have to take any form of bar exam, whereas solicitors – who are more akin to in house counsels in the U.S.- do not.⁸⁹

Now some might argue, why should Tribal Courts want the castoffs from the current system? The response to that is grounded in practicality. I have worked with Tribes for five years and interacted with Tribal legal systems much longer than that. I have seen some Tribes wait sixteen years for the perfect applicant with ten years of experience in one area and an additional five years in another area for a needed non-legal position. That person has never come through the door, and that department sinks into the abyss in the interim. I’ve also seen entry-level job postings for legal positions with Tribes on Indeed go unfilled and continuously reposted on that website and other job boards for years. Tribes and Rural America need to build their Gideon’s Army⁹⁰ with those who have been provided to them to lift themselves up with the former’s ability to license. If the Tribes and Rural America give an opportunity to these law school graduates from low-ranked schools who need someone to believe in them, I think they will be rewarded with a lot of quality lawyers who will be trained to specialize in tribal law and general practice affecting rural communities, thus becoming part of their communities.

VI. Legal Need Meets Economic Opportunity for Tribal Courts in Indian Country

The Five Civilized Tribes had their reservations recognized again, which has been a huge victory for both them and those who support tribal sovereignty. However, the underexamined reality of the holding in McGirt v . Oklahoma is its massive impact on Tribal Court dockets. McGirt , which held that the reservation of the Muscogee (Creek) Nation to be intact, restored tribal court jurisdiction belonging to the Five Civilized Tribes in the Cherokee, Chickasaw, Choctaw, Muscogee (Creek), and Seminole nations for criminal and civil matters across the board.⁹¹ As a result, the demand on Tribal Courts has greatly increased. For example, the Cherokee Nation has seen a massive increase in their tribal court caseload since the ruling was handed down. In fact, one Tribal prosecutor stated the tribe saw its caseload grow by hundreds following the McGirt ruling.⁹²

The Cherokee Nation and the other Five Civilized Tribes have done their best to meet the challenge, but they are facing a tremendous financial burden they did not have before McGirt expanded the tribal court’s criminal jurisdiction.⁹³ One easy and sovereignty-affirming solution to reduce the cost of meeting the challenge of this restored Tribal jurisdiction is for the Five Civilized Tribes to license JD graduates as full attorneys in their tribal court systems just as they did before the Statehood of Oklahoma.⁹⁴ In doing so, they could hire job candidates from law schools in the region and across the country at a reduced rate with the benefit of attorney licensure on a diploma privilege or a bar exam transfer score lower than the state’s required uniform bar exam standard score of 260. This could bring people in at an affordable salary while meeting the increased legal demand of the post McGirt landscape.⁹⁵ Instead of competing with the average salary of $62,000 for a Tulsa area Oklahoma state licensed prosecutor,⁹⁶ the Five Civilized Tribes could hire their tribal prosecutors and public defenders at a much more affordable rate from a diverse selection of law schools across the country. I suspect that many new law school graduates who have not passed a state bar yet would be interested in these positions. For example, they could apply their education and skills as tribal prosecutors rather than stock shelves at a retail store – which some young unbarred JDs have done in need of income while their legal careers were in a state of purgatory.⁹⁷ Indian Tribes could recruit from this group of students for their own internal legal needs, such as for tribal prosecutors, staff attorneys, and public defenders, at salaries that could greatly reduce costs. Simultaneously, this would save the legal careers of thousands of law school graduates by offering diploma privilege admission to the Tribe’s bar association as an attorney in exchange for employment with the Tribe. Alternatively, they could take a bar examination in the Tribe’s law and general legal concept or accept a UBE transfer score from a failed state bar exam attempt.⁹⁸

Now, some lawyers at the Five Civilized Tribes could be apprehensive about pure diploma privilege for those who have not at least attempted a state bar exam and achieved a certain threshold score for a transfer to the Tribe’s Bar Association. However, it’s worth noting that diploma privilege has worked well in Wisconsin since the 19th century⁹⁹ when it was introduced to ensure Wisconsin lawyers were meeting state standards and were molded properly for the state interest.¹⁰⁰ Wisconsin Attorney Joe Niebler recently put in a spirited defense of the principle of diploma privilege, which is at odds with how most states run their state bars since it benefits Wisconsin: “The emphasis on Wisconsin law at Marquette is a direct consequence of the diploma privilege and serves our state very well. M.U.’s graduating attorneys are better prepared for practice in Wisconsin than the brightest student from Harvard.”¹⁰¹

As in Wisconsin, the attorney standards under Tribal law need to meet the legal needs of the Tribe as sovereign, not the interest of the state bar associations of the state in which the Tribe is physically present, nor the guild interest of the NCBE. Attorney standards must be what is good for the Tribes financially, and what is good for their tribal citizens. It must also align with what is good for their sovereign interest, which is having attorneys versed in their tribal law, fulfilling their needed government functions. These standards, however, should at least ensure minimum competency through some variation of a bar exam on par with a state bar exam,¹⁰² apprenticeship model¹⁰³ or diploma privilege based on the Tribe’s needs and a background check.¹⁰⁴

If Tribes decide to pursue a diploma privilege or other means of licensing, requiring attorneys to take a summer course on Federal Indian Law or Tribal Law, like the one offered remotely online at Lewis and Clark Law School during the summer, could be a means of ensuring competency.¹⁰⁵ Regardless, the Five Civilized Tribes are in a prime position to chart their own course in this regard, reasserting their legal licensing authority in order to meet a crisis level shortage of legal personnel in the aftermath of McGirt . Tribes have a history of licensing their own attorneys before the admission of Oklahoma into the union.¹⁰⁶ In fact, they have allowed lay advocates/non attorneys in their court-rooms since Tribal Courts were still being established under the Indian Reorganization Act of 1934.¹⁰⁷ However, as previously noted, the current tribal court system(s) has mostly defaulted to the state bars for the licensing of professional attorneys. They have done so even though the states do not claim that authority over Indian Tribes and their courts. The Supreme Court in Sperry v . Florida ex rel . Florida Bar , 373 U.S. 379 (1963) upheld federal law practice within the State of Florida, ruling that a patient official that was not a member of the Florida Bar could practice law due to the supremacy clause of the U.S. Constitution, effectively overriding state law on the matter despite the practice of law occurring within Florida. As states have no authority to regulate over Indian Tribes unless so given by Congress, the logic of the former case should be applicable here.¹⁰⁸ The current system mostly requires an attorney be licensed elsewhere first before being licensed as an attorney by the Tribe. This is an odd system and I speculate that it’s the byproduct of state licensed attorneys who mostly wrote these tribal codes in the modern era.

Other Tribes have started to go their own way on this front as demonstrated by Spirit Lake Tribe in rural North Dakota, which is hiring a tribal prosecutor starting at $80,000 a year but only requiring them to be a member of the tribal court bar. They are expected to obtain state licensure within a year, however.¹⁰⁹ The point is Tribes are beginning to branch out as their own jurisdictions of law in this area within the modern context and already have a history of licensing their own judiciary and legal professionals. Indian Tribes generally, not just in Oklahoma where it is most needed due to the McGirt holding, can use Tribal legal licensing of attorneys to meet their internal needs. This could include hiring prosecutors for missing and murdered indigenous women cases as Congress wanted the Tribes to license their own attorneys in order to prosecute domestic violence on the reservations.¹¹⁰ In addition, Tribes could consider having tribally licensed attorneys help tribal members with low-level legal needs as a benefit to their citizens as long as there is not a conflict between Tribal citizens or between a Tribal citizen and the Tribe itself.¹¹¹ Tribes count as PSLF employers which could be a real draw for law school graduates looking to have their loans forgiven but not looking for stressful and demanding legal employment after law school.¹¹² A tribally licensed attorney could get house counsel status for the tribal employer in the state jurisdiction, handle matters in tribal court through their attorney’s license and appear in state court on behalf of tribal citizens through the pro hac vice process in some states through the house counsel status.¹¹³

VII. Conclusion

After examining the utility and well-established precedent for tribally licensed attorneys, the path forward is clear. It is time, as we begin to near the 90th anniversary of the Indian Reorganization Act of 1934, that Indian Tribes take back the complete licensure of attorneys in our tribal courts from the state bar associations. In certain respects, it is a moment akin to what Japan and the other eastern nations did in the late 19th century and early 20th century when they shook off affronts to their sovereignty of that colonial era, such as the consular jurisdiction which denigrated their respective legal systems.¹¹⁴ The economic development opportunity from Tribal Legal Licensing is remarkable as well because law school graduates – based on my survey – would be willing to pay $600 or more a year to an Indian Tribe for a law license if it would allow them to get legal work.

I appeared before my own Tribe, the Red Cliff Band of Lake Superior Chippewa’s Tribal Council, in March of 2024 to lobby for changing these rules and for joining a inter-tribal bar association and intertribal consortium to pursue Tribal Legal Licensing of attorneys.¹¹⁵ Red Cliff’s Tribal Court code already removed the formal distinction between attorneys and lay advocates. The code made everyone who passed the Red Cliff Bar Exam an “advocate” while giving state licensed attorneys reciprocity.¹¹⁶ In my closing remarks, slightly paraphrased, before the Council I stated:

“Of the 40 [law school graduates] I talked to over the past year, these are people with their own dreams and ambitions… and I have not met one person who really should not have a license. The people we are talking about are people worth licensing… who could really add a lot to the Tribes. Many people do not realize that we [Indian Tribes] are still here. Unless you are Native American you think we disappeared during the Cowboy Era. And that the people I was talking to thought they would like to start their legal careers in Indian Country and that tribal legal licensing would be a way to do that.”¹¹⁷

If Indian Tribes start licensing their own attorneys in earnest, it is going be a huge benefit not only for Native Americans on the reservations but the entire country and law school graduates as well. In my experience, these graduates are pining for just a little bit of hope that they did not take on hundreds of thousands of dollars in student loan debt in vain after being tricked by law schools which did not have their best interests at heart.¹¹⁸

Because of my firsthand experience, I know the private sector is ready for Tribal Legal Licensing. It’s efficient, saves money, meets a real legal need in the country and affirms tribal sovereignty.¹¹⁹

The right of Indian Tribes to license attorneys to practice law and their status as jurisdictions of law separate from U.S. states is not in dispute even by U.S. state bars.¹²⁰ There are not “50+” U.S. jurisdictions of law, but over 500 U.S. jurisdictions of law.¹²¹ The implications of this are still groundbreaking and Tribes will need to balance their legal needs in the Anglo American legal system while maintaining their traditional cultures surrounding legal practice.¹²² With that said, the exciting frontier pioneered in Florida will drastically change our understanding of the American legal system and who has a right to license attorneys in this country. There are amazing opportunities related to Tribal Legal Licensing not only for Indian Tribes to meet their legal needs, but also for large companies, public service organizations and others across the U.S.. As noted by Professor Paul Campos and successful former big law partner Stephen Harper, the American legal profession is in need of reform.¹²³ America’s Indian Tribes have an important role to play creating a brighter legal future for everyone.