One active Native judge is less than one-quarter of 1 percent of the federal bench

Monday, March 9, 2020  

There are 870 Article III judges in the United States. Two are Native American. One in Arizona and one in the Eastern District Court of Oklahoma. There are no American Indians or Alaska Natives serving on one of the U.S. Courts of Appeals. Or the Supreme Court.

That works out to .229 percent or less than one quarter of one percent.

But even that number requires an asterisk because one of the judges is Frank H. Seay, Cherokee, who took senior status in 2003 and has been inactive for many years.

The Center for American Progress examined the federal judiciary and found a lack of female judges, judges of color, and judges self-identifying as LGBTQ across the entire federal judiciary. The report’s findings paint a bleak picture of demographic representation across the lower federal courts. That’s unfortunate because “judges from different backgrounds and with different life experiences bring their unique and invaluable perspectives to bear on the cases that come before them. For litigants, diversity on the federal bench offers real, substantive benefits, including fairer judicial decisions.”

"I don’t focus on it," said Judge Diane Humetewa, Hopi, with the U.S. District Court of Arizona. "I focus primarily on the job I’m here to do. But at the same time, studies like the one that came out remind me of how there is a lack of diversity.”

When she was nominated by President Barack Obama in 2013, then later confirmed unanimously by the Senate, she was shocked to learn the historical significance as she would be the first Native American woman to ever serve as a federal judge.

“Being female and Native American, people aren’t used to seeing us as lawyers, at least when I was practicing back in the 90s,” she said.

Humetewa said Native American judges are needed in states that have Native populations like North Dakota, New Mexico and Arizona.

“It gives the community the perception that people that they see on the district court reflect their community and some familiarity with the environment,” she said.

And during her time as a prosecutor for Arizona’s U.S. Attorney’s Office, she discovered how she was different from her peers.

“I noticed none of the other prosecutors used to visit tribal lands,” she said. “My belief was you can’t do your job appropriately if you don’t go to the area where the event happened and not meet with the people.”

Those responsible for staffing the federal judiciary believe America’s “representative democracy” should stretch only so far as representing the second-most selective country club in Mississippi.

The federal judiciary does not resemble America.https://t.co/ZfvekKdQvY

— American Progress (@amprog) February 13, 2020

Before she worked as a prosecutor at the U.S. Attorney’s office in Arizona, she was a victims advocate there. Her peers noticed her ability to establish a rapport and communicate well with Native crime victims, so they urged her to apply to law school.

“I have that level of familiarity that other people have to learn about,” Humetewa said.

She said despite the low numbers of American Indian judges, the data is improving considering the 2010 U.S. Census data says American Indians make up only 1.7 percent of the national population, Native children are just beginning to attend colleges and other demographics have generations of family members who are lawyers.

“It’s going to take an amount of time,” she said. “I think it’s a natural progression of what we’re seeing.”

Humetewa also said her journey to the U.S. District Court wasn’t a sudden occurrence.

“A lot of people overlook the fact that I’ve been a lawyer before I got the nomination, I was practicing law for 20 years,” she said.

She recommends that Native Americans who want to be part of the judicial system gain experience with federal cases and court practices.

“In my view, Native people who are interested in these kinds of positions eventually have to have in depth experience in practicing federal courts, at least some familiarity in state positions to the extent of state judgeships,” she said.

She mentions that selecting federal judges are political decisions, too.

“Sadly if you don’t have the right political affiliations, that is going to be a detriment to any Native American person if they are of the wrong political stripe,” she said.

John Echohawk, executive director of the Native American Rights Fund, a non-profit organization dedicated to provide legal assistance to Indian tribes, organizations and individuals, agrees that the political scene is one obstacle Native Americans face to join the judiciary field.

“We just need to keep recruiting and keep educating young law students coming up about the need and hope for the best, everyone is working on it,” he said.

One initiative the Native American Rights Fund is part of is the Federal Judicial Selection Project that was developed by tribal leaders in 2001. It was created to educate both federal judiciary about tribal laws and vice versa.

“These programs are on-going and hopefully will produce some results,” Echohawk said.

From his perspective in the beginning of his law education, Native Americans in law are gradually increasing, but it’s a waiting game.

According to the Federal Judicial Center, only three Native Americans have been federal judges in history.

“From the time I was in law school, 50 years ago, we had 25 Native American attorneys who were able to be identified nationally, now we have over 2500 Native American lawyers.”

The Center for American Progress found that “people of color make up just 20 percent of all sitting judges and 27 percent of active judges. In all, African Americans comprise 10 percent of sitting judges and 13 percent of active judges, while Hispanic judges make up about 7 percent and 9 percent of sitting and active judges, respectively. Asian Americans comprise an even smaller proportion of the lower federal courts: Only 2.5 percent of active judges and 4 percent of sitting judges are Asian American.”

The data for women is similar. “Five district courts, or 5 percent, have no sitting female judges. That number doubles when considering active judges: In all, 10 federal district courts, or 11 percent, have no actively serving female judges on the bench,” the report said.

And on the other side of the metric, among active judges, there are 39 courts, almost half, that are entirely composed of white judges, the report said. “Active judges of color comprise at least half of the bench on only 13 district courts — 14 percent. Just one district court—the District Court of Puerto Rico—entirely comprises judges of color.”

And at the appellate court level, although people of color comprise roughly 40 percent of the U.S. general population, they make up just 17 percent of sitting circuit court judges and 23 percent of active judges. The report said “there is not a single circuit court where judges of color comprise more than 36 percent of the bench and the 7th Circuit has no judges of color at all.”\

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Note: This story originally appeared on Indian Country Today on March 8, 2020.

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