Two factors have been particularly problematic in lawyer representation of Western Shoshone interests:
A lawyer is an "officer of the court." This means that, though the lawyer is supposed to represent the client, an underlying duty binds the lawyer to the legal system itself. This duty includes rules of court etiquette and deference to judges. It also includes allegiance to conventional jurisprudence. in short, lawyers tend to become more attached to other lawyers and to the "normal" way of doing law than to their clients.
In cases where a lawyer represents oppressed or marginalized people, the lawyer all too easily takes control, determining not only which legal tactics and strategy will be employed, but also the overall goal of the case. When the lawyer has little or no real understanding of the client's world-view, as often occurs in Indian cases, the entire purpose of the case can be completely transformed, bringing about results that may be antithetical to those intended by the clients. But the lawyer will typically say that this is the way it has to be done.
For the Western Shoshone, these consequences of the lawyer's bond to the law have meant that their arguments for sovereignty over ancestral territory have been ignored or downplayed. Instead, lawyers have argued for their "rights" under federal laws. The Shoshone's own perspectives have generally not been presented.[For some interesting reading on lawyers, see:
The problems of lawyer-client relationship discussed above are exacerbated in "federal Indian law ."
The basic doctrines in "federal Indian law" assert that the United States government has "plenary power" as a "trustee" for Indian interests. This means that a lawyer arguing within conventional jurisprudence will start from the premise that Indian clients, even if they are whole tribes or nations, are subordinate to the federal government. The lawyer will look for ways to satisfy the interests of the clients within this framework of total power, and will not challenge that power itself.
Indian clients are thus subject to a double burden: subordinate to the lawyer as member of the legal system, and to the government as their "trustee."
To make matters worse, an economic incentive was especially designed in the Indian Claims Commission Act (1946) to encourage lawyers to work for the termination of Indian land title and sovereignty. The incentive was an automatic legal fee of 10% of any amount paid by the government to clear an Indian title. The Act did not provide for any fee for lawyers who might succeed in retaining Indian title. The irony of all this was observed by Supreme Court Justices Jackson and Black, in Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335, 354 (1945):
The jurisdictional act provides that the proceeds above attorneys' fees shall "be deposited in the Treasury of the United States to the credit of the Indians" at 4 per cent interest and "shall be subject to appropriation by Congress only for the health, education, and industrial advancement of said Indians." The only cash payment is attorneys' fees. ... After counsel are thus paid, not a cent is put into the reach of the Indians....