The Law Is Changed Through Advocacy But So Are Those Who Advocate
Author Bio: Juris Doctor (J.D.), James E. Rogers College of Law, University of Arizona; Bachelor’s of Science (B.S.) in Business Administration, Eller College of Management, University of Arizona; Master of Laws (LL.M.) in International Economic Law & Policy; Doctor of Juridical Science (S.J.D.) candidate. Joseph Austin is an attorney licensed to practice in state and tribal courts. He is from Chilchinbeto near Black Mesa and an enrolled member of the Navajo Nation. He practices federal Indian law, tribal law, and criminal law. He is also the CEO and one of the founders of Olea, Solórzano & Austin. Special thanks to Tom Higgins, a great mentor and friend.
Many of us lawyers chose to go to law school with the hope that someday we could make changes in the law. Some of us were from various Native Nations and indigenous groups with a chip on our shoulder. We grew up in disadvantaged communities that were oppressed by the rule of law. We believed that if we could learn the law, and learn it well, we could change it or shape it for the betterment of the communities we left. We hoped that what we were told and what we believed was true: the law is changed through advocacy. But, then we became lawyers.
As lawyers, our job is to know the law and advise others on what the law is. We represent clients before courts, and we advocate zealously in vindicating and protecting their rights. For ourselves, we take an oath to uphold the rule of law, defend the constitution, continually educate ourselves, and operate in accordance with a code of ethics. These duties and responsibilities as a lawyer apply regardless if one practices in the civil or criminal field.
In representing clients, I have frequently been asked to explain the legal implications of my clients’ proposed course of conduct. They want to know what will happen if they do this or that, and in the event that they choose to do this, how can they get out of that? In recent years, I have also been asked to teach certain areas of law to judges, lawyers, and legal advocates. I taught federal Indian law at law schools and lectured at conferences on the use of customary law in tribal courts.
As a practitioner, I can attest that the law can be changed through advocacy, but the opportunities to advocate for changes are few and far in between, especially in the state and federal courts. And unfortunately for indigenous peoples, the changes we want to make most are in those court systems. The lawyers fortunate enough to get the opportunity to advocate for change will always have someone on the other side arguing against them and another person deciding if changes are really necessary.
As a teacher, I have no qualms about telling students that indeed the law is changed through advocacy, but advocacy, I caution them, is not so simple. This is true particularly in the field of federal Indian law. Trying to make changes or uproot the rules in federal Indian law, to use the words of my former boss, “is like trying to hit a moving target in the dark, blindfolded, while hanging upside down.” It is definitely possible, but everything must line up just right. It must be calculated and the timing must be perfect.
I know my view on the practice of law sounds pessimistic, but it comes from my experience working as a tribal lawyer for Native Nations. Lawyers, generally, face many obstacles and issues just being part of the legal field. Tribal lawyers, on the other hand, experience the same things but also have to deal with issues that are unique to working in Indian Country.
I tell students that being a tribal lawyer is like being part of a football team. You undergo intense training like every other team, and when the season starts, you find out the league changed the rules to say that your team cannot run the ball. You can only throw the ball and passes must exceed 30 yards. The rules are biased against you, and you end up constantly throwing hail marys. You will land a few every now and again, but your record is more losses to wins. For those not a fan of sports, basically as a tribal lawyer you are going to lose and lose a lot, unless the rules change.
As you can see, us lawyers are naturally bitter and jaded, but can you blame us? Our whole career and education is based off of us doing risk assessments and telling people what not to do. We are trained to be cautious and think of every outcome, good or bad. The possibility of getting sued for malpractice when what was supposed to be a good outcome turns out to be bad, causes us to give more weight to the possibility of bad outcomes.
We are taught to protect our clients but also ourselves. The possibility of making a mistake that jeopardizes our license to practice law, the one thing which we cannot do without, scares us like nothing else. So, of course we will err on the side of caution and tell our clients not to do something if there is a possibility that things will go sideways. And we hope with all our heart that our client does not do what we told them not to do because then we might get roped into the mix. Therefore, we lace every piece of advice with disclaimers and notices of whether our words should be construed as legal advice or just normal speech from one person to another.
The mind of a lawyer is always cautious, and in many ways, it is pessimistic. It has to be that way; it must be that way. This mindset combined with the stress of our job sums up the legal profession. Regardless of whether a lawyer enjoys th