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Rural incentive programs for legal and medical professionals: a comparative analysis.

I. INTRODUCTION

In 2013, South Dakota became the first state to enact legislation establishing an incentive program for attorneys who agree to practice in rural areas. (1) That legislation is Project Rural Practice and establishes "a pilot program to assist rural counties in recruiting attorneys." Project Rural Practice has already had success. Within five months, Project Rural Practice placed its first lawyer in a rural community. (3) Even though there are more lawyers than legal jobs in the United States, (4) many rural areas of the country do not have sufficient lawyers. (5) Lawyers are incredibly important in rural communities, and there are definite harms to communities and individuals when lawyers are not available. (6) Inspired by Project Rural Practice, The South Dakota Law Review has taken on the project of hosting a symposium discussing the rapidly declining number of attorneys in rural areas across the nation and what can be done to confront the shortage. (7) This symposium is particularly important because of a general lack of academic research into rural access to justice. (8) The academic study of legal systems tends to neglect rural courts and lawyers. (9) This symposium thus fills a niche in existing scholarship--access to justice in rural America.

In contribution to the Project Rural Practice symposium, this piece engages in a comparative analysis of incentive programs for medical and legal professionals in rural areas, specifically focusing on South Dakota. The storied history of incentive programs for rural medical professionals lends background knowledge and experience to a project that is simply unprecedented in the legal community. (10) For many reasons, it is natural to compare rural incentives for lawyers to rural incentives for medical professionals, and many have done so. South Dakota Senator Mike Vehle explained Project Rural Practice by saying, "South Dakota has enough attorneys--they're just not in the right locations. We [provide incentives] for doctors, dentists and nurses, so why not lawyers?" (11) Chief Justice David Gilbertson of the South Dakota Supreme Court noted, "A hospital will not last long with no doctors, and a courthouse and judicial system with no lawyers faces the same grim future." (12) The current American Bar Association ("ABA") president discussed how Project Rural Practice "is being compared to similar programs designed to attract doctors, nurses and dentists to rural areas." (13) While many mention Project Rural Practice in comparison to incentive programs for medical professionals, as of yet no in-depth comparison has been published. This piece seeks to fill that gap.

Before comparing programs, a discussion of what professional services mean for rural communities is in order. Thus, Part II is a discussion of rural access to justice and how the lack of lawyers and legal communities harms rural areas. Part III moves to the medical profession and examines the various policies that the South Dakota State Medical Association and the University of South Dakota ("USD") Sanford School of Medicine have used over a number of years to incentivize medical professionals to practice in rural areas, focusing on the current system. A discussion of rural access to legal professionals in South Dakota would not be complete without a discussion of Indian Country. (14) Therefore, Part IV of this piece turns to an examination of the services provided by the Indian Health Service ("IHS") and how IHS brings medical professionals to rural reservation communities. The medical services provided by IHS are starkly contrasted against a nearly absolute lack of law-trained court personnel in many tribal courts. Whereas the United States Federal Government provides health care on reservations, the Federal Government also has allowed, perhaps even incentivized, the lack of law-trained personnel in tribal courts. This piece not only compares the current state of medical and legal access on rural reservations, but also demonstrates how Project Rural Practice is critical to all of rural South Dakota, even, if not particularly, Indian Country.

Moving beyond a mere examination of these practices, Part V compares the types of incentives that have been and are being used for medical professionals with Project Rural Practice. Certainly, there are differences in medical and legal practice; however, it is helpful for a discussion of Project Rural Practice to understand how young medical professionals have been incentivized to practice in rural communities over a number of years. This article argues rural legal access is critical to rural communities, just as is rural medical access. In examining the types of services necessary for rural communities--medical, psychiatric, and legal, to name a few--it is clear legal services are necessary for rural communities. Thus, this piece concludes the strong historical precedent of incentives for medical professionals to practice in rural areas is instructive for Project Rural Practice, in part because both services are vital for the welfare of rural communities and their inhabitants.

II. RURAL ACCESS TO JUSTICE

Project Rural Practice is an ambitious plan, which is sorely needed to bring access to justice to rural parts of the state. South Dakota does not have a lawyer shortage; rather, South Dakota has a lawyer-allocation problem. (15) Part II argues rural legal access is critical to rural communities, just as is rural medical access. The dwindling number of rural lawyers, which Project Rural Practice hopes to change, is only one of myriad resource issues faced by rural judicial systems.

   A number of studies of rural courts have documented problems in
   [resources], ranging from low budgets to inadequate referral
   services. Rural courts routinely receive less federal money and
   have a lower local tax base than urban and suburban courts, which
   accounts for the fact that facilities often are outmoded and
   salaries are low. A shortage of funds and geographical distance
   often prevent staff from taking advantage of training programs
   offered in centralized areas. The pool of available attorneys,
   expert witnesses and even jurors is diminished considerably.
   Peripheral services, such as the availability of victim's
   assistants, shelters and services for diverting such special
   populations as juveniles at risk, substance abusers or the mentally
   disordered often are lacking. (16)


These are real problems faced by rural communities. In general, rural areas receive fewer government benefits per capita than urban areas. (17) Yet neither the Federal Government nor the states have worked to increase lawyers or legal resources in rural areas. Perhaps one reason states have not worked harder to promote rural access to justice is "[historically, the plight of rural courts in this country has been quietly ignored or overshadowed by the escalating and more visible problems of urban courts." (18)

While most academic research focuses on urban courts and legal

services (19) rural areas face their own particular access to justice issues. (20) The issues faced by rural courts can be severe, in part because "even our legal system has an urban orientation." (21) Although rural courts are guided by the same fundamental principles as those in (sub)urban settings--independence, adversariness and the rule of law--they are confronted with special problems that sometimes constrain their effectiveness such as lack of resources and isolation." (22) One common perception is, because there are fewer cases filed in rural courts than urban courts, rural courts are less busy. (23) This, however, is not true as rural courts are often in session less frequently, such as when multiple counties share a single judge. (24) Rural judges are also more likely to have no staff members--such as clerks and court administrators and thus are performing additional jobs (25)--and are more likely to be part-time. (26)

Not only judges and court staff carry heavy loads without sufficient resources in rural communities. Practicing lawyers also face resource issues. To begin, there are not enough lawyers in rural areas. (27) Of course, the idea of Project Rural Practice is that the right lawyer placed in a town could sustain access to justice for decades. (28) While having one attorney is better than having none, even one attorney may not provide full legal support for a community. (29) Many rural counties only have part-time prosecutors, who also maintain private practices. (30) With a small legal community, conflicts of interests become more real, and more common. (31) When lawyers don multiple hats in a small community, those multiple roles can "undermine the role of courts as fair and impartial arbiters, and they can foster perceptions of courts as pawns of attorneys promoting their own economic self-interest." (32) Rural courts are also more likely to be attorney-controlled; attorneys frequently control the pace of rural courts because of local expectations and norms. (33)

A lack of lawyers can present particular problems in criminal defense cases. In rural areas in particular, "it may be difficult to find lawyers who are both trained in criminal law and philosophically inclined to represent criminal defendants." (34) Studies have shown juveniles in particular are frequently left without representation in rural areas. (35) It is not only criminal defendants who suffer when there are few attorneys available, parties in civil cases can also be left without adequate representation because "few local attorneys in small rural communities are inclined to forcefully adjudicate controversial cases for fear of community antagonism." (36) The same close-knit community which may allow the only local attorney to intimately know and understand his or her clients, may also lead to that same attorney being unable or unwilling to take a difficult or unpopular case. (37) Because local attorneys are less able to take controversial cases, "rural courts rarely become agents of socio-political change unless the impetus for change is imposed from outside of the rural community." (38)

One problem that cannot be easily solved is the geographic distance between courthouses. (39) "Because rural courts are located in less densely populated areas than their urban and suburban counterparts, their geographical reach is far greater. This creates the challenge of making them accessible to the public." (40) Courts are inaccessible because they are located far distances from the most rural communities and because it can be difficult to obtain lawyers. The problems faced by rural legal communities cannot be fixed by Project Rural Practice, but the program is an important start. Project Rural Practice hopes to keep courthouses open, provide individuals with access to attorneys, and "ensure that our rural county governments, school boards, cities and towns have access to legal services in those underserved areas." (41) Because Project Rural Practice is the first of its kind, (42) it is important to look at preexisting incentive programs for professionals--those for medical professionals--to understand how Project Rural Practice will likely function.

III. RURAL HEALTHCARE INITIATIVES

The health care industry is facing projected shortages of health professionals nationwide. (43) National studies of rural areas, which contain twenty percent of the population but only ten percent of physicians, (44) show a shortage of more than 7,000 doctors. (45) In South Dakota, the problem is severe (46) and is worse in rural areas of the state. (47) Whereas there are plenty of lawyers, (48) the same is not true for medical personnel. (49) The South Dakota medical shortage requires not only incentives to get medical professionals to rural areas, but also an improved pipeline to train new medical personnel. (50) South Dakota is going to need 8,000 additional health care workers between 2010 and 2020. (51) Compounding the need for additional health care workers is that "significant numbers of current healthcare providers are nearing retirement age at a time when the state's school-age population is declining which means there is a smaller pool of students from which to draw for health careers." (52) More than half of the doctors in South Dakota are older than forty-five. (53)

Just as with attorneys, physicians and other health professionals are concentrated in our state's most populous areas, (54) leaving most of South Dakota federally designated as a health-professional shortage area. (55) Fifty-nine of South Dakota's sixty-six counties fully or partially have the federal shortage designation. (56) The healthcare shortage is not only a geographic shortage, but also a shortage with regard to quality and affordability. (57) "Medical services in rural America are weak from the standpoint of the number of health professionals, the quality of the medical facilities, and the level of usage of these facilities." (58) Even more difficult to access is mental health care; psychiatric assistance in particular can be a long way away. (59)

South Dakota is attempting to remedy the shortage of healthcare professionals. The South Dakota State Medical Association and the University of South Dakota Sanford School of Medicine have used various policies over a number of years to incentivize medical professionals to practice in rural areas. South Dakota has settled on providing students with rural experiences and financially incentivizing professionals to increase rural healthcare providers, (60) but still has concerns with coordination between the many programs. (61) In 2012, Governor Dennis Daugaard's administration produced a report about primary care medical services in rural areas. (62) Much of what we know about the provision of healthcare and the recruitment of medical personnel in South Dakota comes from Governor Daugaard's report. (63)

One characteristic aiding the rural medical profession is the availability of non-physician medical providers. (64) Even in counties where there may be no physician, there may still be physician assistants ("PAs"), nurse practitioners ("NPs"), or nurse midwives ("NMs") who provide primary health care. (65) Looking just at physicians in rural South Dakota, the absences are astounding. In 2011, there were 757 primary care physicians in the state, but nineteen counties with no primary care physician at all: (66) there were twenty-three counties with no family/general medicine physician; forty-three counties with no internal medicine physician; fifty-two counties with no OB/GYN physician; and forty-eight counties with no pediatrician. (67) Of the counties with no primary care physician, Ziebach, Jackson, Jones, Sanborn, and Hanson Counties also do not have even a single PA. (68) There are eighteen counties with no NP; (69) of the counties without a NP, only Hanson County also has neither a primary care physician nor a PA. (70)

To address the lack of medical providers, South Dakota is working in various ways to ensure sufficient medical provision to rural areas. Programs in South Dakota can generally be placed into four categories, (1) the provision and support of professional schools, (2) increases in educational opportunities for professional students, including internship placements for students, (3) loan repayment programs to directly support new healthcare professionals, and (4) incentive programs aimed at and supporting healthcare facilities.

The first category of support comes in the form of increased educational opportunities for students. Because there are not enough healthcare professionals, South Dakota is working to increase the "healthcare workforce pipeline" in the state. (71) To do so, South Dakota actively promotes the health professions to younger students and supports professional students through programs and internships. (72)

The University of South Dakota Sanford School of Medicine ("the medical school") plays an integral part in rural healthcare in the state. As part of their mission, the medical school educates with "an emphasis on family medicine" and "[e]ncourage[s] [their] graduates to serve medically underserved areas of South Dakota." (73) The medical school recently, with funding from the 2012 state legislature, added four additional spots to their class, meaning each class will now graduate fifty-six students. (74) In 2013, the medical school asked for funding to add an additional eleven students in fiscal year 2015. (75)

The medical school is a "community-based medical school," which means the medical school utilizes community clinics and hospitals for the clinical education of medical students. (76) The medical school has long required two four-week learning experiences in rural medicine as part of its curriculum. (77) The numbers of medical school graduates practicing in rural areas of the state are not great--for "graduates who are 10-15 years out of medical school, 40% are currently practicing in primary care, 28% are practicing in rural areas and 37% are practicing in South Dakota." (78) The chance a USD medical school graduate will establish a rural health practice, and/or a South Dakota practice, increases if that graduate stays in South Dakota for his or her residency. (79)

Along with the medical school, the USD School of Health Sciences Physician Assistant Program and the South Dakota State University ("SDSU") Nurse Practitioner Program educate important medical providers. (80) The PA program began in 1993 with the first graduates in 1995 and currently has a capacity of twenty-five students, twenty of whom are South Dakota residents and five of whom are non-residents. (81) PAs provide important medical services, particularly in rural communities, and are a quickly growing profession. (82) About seventeen percent of PAs work in rural areas, as compared to ten percent of physicians. (83) South Dakota supports the education of PA students, in part, by providing payments to current providers who work as preceptors. (84) The fiscal year 2014 budget included $455,440 for South Dakota based preceptors. (85) South Dakota provides this financing so more PA students do rotations in South Dakota, and are thus more likely to stay in South Dakota; increases in the budget between the class of 2013 and the class of 2014 lead to a 38.5% increase in the number of South Dakota providers serving as PA preceptors for the USD PA class. (86)

South Dakota State University established the only Nurse Practitioner program in the state in 1979, and in 2009, the program began educating NPs at the doctoral level. (87) Again, the State of South Dakota supports the training of NP students by funding preceptors. (88) The fiscal year 2015 budget from the Board of Regents includes $260,000 in support payments to South Dakota providers serving as preceptors to NP students. (89)

Although not primary care providers, nurses are an integral part of healthcare provision. (90) However, the nation and the state face a substantial nursing shortage. (91) Thankfully, nursing is "one of the world's largest and fastest growing occupations." (92) South Dakota has recognized the need to have additional nurses available to aid physicians in the provision of healthcare. A major step toward the provision of new nurses was the recent accreditation of the University of South Dakota for a Bachelor of Science degree in nursing. (93) Private colleges in South Dakota also play an important role in educating nurses. For example, Mount Marty College offers various nursing degrees, including the only graduate level degree for nurse anesthetists in the state. (94)

The second grouping of support comes through South Dakota's provision of additional support for professional students through specific educational and training programs and placements. (95) One program supporting students interested in rural practice is The Rural Experiences for Health Profession Students ("REHPS"). (96) REHPS ultimately aims to increase the number of medical professionals practicing in the rural areas and small towns of South Dakota and works to achieve this goal by providing first and second year medical, PA, NP, and pharmacy students with experience in a rural setting. (97) REHPS pairs two healthcare students (one pharmacy and one physician/NP/PA student) together in an approved community for a four-week rotation. (98) While students cannot leave their community without permission, they receive a $4,000 stipend for participating. (99) As of November 2013, ten separate communities have participated in REHPS, hosting a total of thirty-six students. (100)

In 2012, the state legislature created the Frontier and Rural Medicine ("FARM") program. (101) The FARM program is a rural track program, which provides third year medical students with a nine-month clinical training in a rural community. (102) The single nine-month rotation is unique--most third year students at the medical school spend nine months travelling the state doing six-week stints in various communities. (103) The FARM program was established to increase the number of primary care physicians who practice in rural South Dakota (104) by increasing interest in rural medicine and providing in-community learning. (105) Currently, funding and support is available through South Dakota WINS for six students per year to participate in the FARM program. (106) Students will be placed at one of five currently approved sites including: Milbank, Mobridge, Parkston, Platte, and Winner; the FARM program intends to expand the number of sites available to students. (107) The program incentivizes student involvement by requiring each participant to design and implement a project to address a local health concern. (108) In the first year of the program, nine students applied and six of those students began their rotations in the summer of 2014. (109) The goals and methods of the FARM program are explained:

   Training in a rural community offers medical students the
   opportunity to experience increased hands-on education and gain an
   appreciation of the benefits of continuity in patient care.
   Students also gain an understanding of the rewards and challenges
   of rural practice while living, learning and becoming engaged in
   their communities. Learning is enhanced through specialty clinics
   on-site, academic faculty visits, on-line cases, telemedicine, and
   videoconferencing. In addition, FARM instructors are provided
   faculty development opportunities to enhance their teaching skills.
   Community ambassadors also assist in introducing students to and
   engaging students in their communities. (110)


South Dakota's medical community thus has substantial infrastructure for placing students in rural settings for internships while they are in school. (111)

For medical students, programs are in place to ensure rural residencies are a positive experience. In order to better develop community relationships with residents in South Dakota, Senate Bill 118 established a medical resident license, (112) which provides additional practice opportunities for residents during their training. (113) The new licensing regime is a means to allow communities to develop relationships with residents to aid in the recruiting process. (114)

The third type of support provided to health professionals are tuition reimbursement programs. Tuition reimbursement is a very important part of the rural incentive process. In South Dakota, the first tuition reimbursement program for physicians was put into place in 1997. (115) As of the Oversight Committee Report published in November 2013, twenty-three physicians have completed their commitment and fourteen of those are still practicing in their placement community. (116) In addition, there are five PAs and NPs who have completed their commitment and remain in their placement community. (117) The 2012 legislature made updates to the tuition reimbursement program, now referred to in the literature as the Recruitment Assistance Program. (118) For physicians, the changes include an increase in the number of physicians participating at any one time to fifteen, and an expansion of program eligibility to include internal medicine, pediatrics, and OB/GYN in addition to family medicine. (119) For non-physician medical personnel, the number participating at any one time is increased to fifteen and for the first time nurse midwives are eligible to participate with PAs and NPs. (120)

The federal government also participates in loan repayment. The National Health Service Corps ("NHSC") is a long-standing federal program, which provides loans and scholarships to physicians, nurses, and other healthcare providers who serve in underserved communities for at least two years. (121) Between 2009 and 2013, the NHSC has supported nearly 14,000 medical professionals who are primary care providers. (122) Through its loan forgiveness program, the NHSC offers $60,000 in tax-free loan repayment for 2 years of service, and up to $140,000 for a total of 5 years of service. (123)

The Affordable Care Act has reinvested in the NHSC by investing more than $284 million, which in turn allowed the Corps to support 4,500 medical professionals in fiscal year 2013. (124) The government reports more than eighty-five percent of participants stay in underserved communities after their commitment has finished. (125) In South Dakota, the NHSC supported eighteen clinicians in 2009, twenty-one in 2010, twenty-three in 2011, twenty-three in 2012, and nine in 2013, through the loan-repayment program. (126) The NHSC also helps South Dakota through the State Loan Repayment Program, which provides grants to the state to operate its own loan repayment programs. (127)

The fourth and final category of programs are those focused on bringing established providers to particular areas. As an important part of his tenure, Governor Daugaard has established a Workforce Initiative ("SD WINS"). (128) Two key programs of SD WINS are the Rural Healthcare Facility Assistance Program and the Recruitment Assistance Program. (129) Both programs are designed to assist small, rural communities with populations under 10,000. (130)

In 2012, the Rural Healthcare Facility Recruitment Assistance Program was established. (131) The program aims to assist rural hospitals, nursing homes, and other healthcare facilities in recruiting and retaining healthcare professionals. (132) To attract healthcare professionals, the program provides a $10,000 grant to healthcare professionals who commit to working in communities of 10,000 or less for at least three years. (133) Providers covered include nurses, dieticians, nutritionists, physical therapists, occupational therapists, respiratory therapists, radiological technologists, medical laboratory professionals, pharmacists, and paramedics. (134) In the first year, the program placed sixty professionals (135) in thirty-five communities across South Dakota, including hospitals, nursing homes, clinics, and home health agencies. (136) The South Dakota Legislature has considered increasing funding to the program because of its success. (137) However, in 2013 only five of the fifteen physician slots were filled and five of the fifteen PA/NP slots (138) were filled. (139) The funding structure of the incentive payment splits the costs between the state and the facility in which the employee works. (140) Healthcare facilities in small communities pay a smaller share: the state covers seventy-five percent of the incentive payment for communities of 2,500 people or fewer and fifty percent for communities larger than 2,500 people. (141)

The preceding is a short overview of incentive programs available in South Dakota for medical professionals. The list is extensive, particularly in comparison to the list of incentives for lawyers. While financial support and training opportunities are widespread in the South Dakota medical community, the community still continues to work toward providing additional rural healthcare. For example, the medical school is currently focused on establishing a rural general surgery residency. (142) In the medical community, additional funding is being sought to extend existing programs. The continued push for rural healthcare is vital because rural healthcare will inevitably change and expand as the Affordable Care Act begins to impact rural communities where large proportions of the poor have not previously had access to healthcare. (143) Because the Affordable Care Act offers access to health insurance but does

not guarantee access to care, communities will face increased shortages of health care providers. (144) South Dakota's medical profession is much more prepared to offer support to rural communities than is South Dakota's legal profession. However, significant shortfalls remain in the most rural counties and on South Dakota's reservations.

IV. INDIAN HEALTH AND LEGAL SERVICE INITIATIVES

Indian Country (145) is an important and substantial part of South Dakota. (146) Discussing access to professionals in South Dakota cannot be complete without a specific discussion of Indian Country. Not only are there cultural differences in Indian Country, there are substantial legal and functional differences because of the United States Federal Government's role. Perhaps the most basic tenet of Federal Indian Law is the trust relationship between the Federal Government and the tribes. (147) Part of the trust relationship is the provision of health care through the Indian Health Service ("IHS"). As former United States Senator Daniel Inouye has articulated, "[o]ver 100 years ago, the Indian people of this nation purchased the first pre-paid health care plan, a plan that was paid for by the cession of millions of acres of land to the United States." (148) The relationship between the Federal Government and tribes has been tumultuous. (149) Although IHS is far from perfect, (150) it has arguably been the best Federal Government program in Indian Country. (151) Scholars argue that IHS is the single factor accounting for Indian health being as good as it is. (152)

Understanding current medical services on the reservations requires a short look at the history of IHS. Initial contact with Europeans was devastating for the health of the Indian population. (153) Yet the Federal Government contracted to provide health care through treaties and the first "[f]ederal health services were established within the War Department in 1824," (154) but early services were not positive for many tribes. (155) The Bureau of Indian Affairs ("BIA"), which ran the health services, was transferred from military to civilian control in 1849 and placed under the Department of the Interior. (156) In 1921, the Snyder Act was passed, which simply mandated the BIA to expend moneys appropriated by Congress for, among other things, health. (157) While the open-endedness of the Snyder Act allowed the IHS to provide needed services, it did not allow for long-term planning and "subjected Indian health programs to the vagaries of the yearly appropriations process." (158) IHS was created in 1955 when health care provision was transferred from the BIA to the Public Health Service ("PHS") and the IHS was formed as the entity we know today. (159) IHS provides medical care to members of federally recognized tribes through IHS-run hospitals or tribal hospitals under contract with the IHS. (160) IHS provides regionalized health care which is focused on meeting the needs of a mostly rural population. (161) While the IHS does offer grants to organizations providing health care to Indians, most of the funding and support of IHS goes directly to rural reservations. (162) During the War on Poverty, some urban health programs developed--the first were in Rapid City and Minneapolis. (163) Today there are IHS clinics in urban areas, but IHS remains a mainly rural service. (164)

In 1976, congress passed the Indian Health Care Improvement Act ("IHCIA") which greatly expanded health care. (165) In 1988, the IHS status was upgraded to that of an agency within the Department of Health and Human Services. (166) Through contracts tribes have, in part, "taken over their own health operations with mixed consequences." (167)

IHS has long faced a shortage of physicians. (168) IHS is unique in placing physicians in rural areas with an almost non-existent economic base where physicians are unable to expand their income based on their own initiative; the communities cannot support additional services and physicians are hired on government salaries. (169) During the decades preceding the 1955 creation of IHS, the BIA "faced more difficulties in recruiting and retaining qualified physicians than comparable 'career services' like the military, the Veterans Administration, and the Public Health Service." (170) At the time, "'[t]he pay was terrible, the doctors were isolated, they had bad facilities, no books, no continuing medical education, and worst of all, they were subordinate to the local BIA superintendent.'" (171) One tool used by IHS to recruit physicians was the doctor draft. (172) Beginning in 1950 during the Korean War physicians were obligated to fulfill two years of service (173) in the Air Force, Army, Navy, or the uniformed Commissioned Corps of the Public Health Service. (174) Physicians could fulfill that obligation by working for IHS; to work in the Public Health Service they had to apply, and few of those who applied secured work there. (175)

For IHS, the doctor draft meant:

   A pool of young physicians who tended to be dedicated and to
   possess excellent clinical skills thus became available, but their
   presence was a mixed blessing. Tribal members tended to be
   suspicious, viewing the physicians as mere conscripts. Some of the
   young physicians, on the other hand, were hurt at not being
   embraced by the reservation residents and bridled at what they
   perceived as the rigidity of the career administrators. (176)


Certainly not all doctor-draft physicians were failures. Some of those young doctors "thrived in the reservation milieu and stayed in the IHS throughout their careers." (177) With a base of doctor-draft physicians, the quality of medical care improved on the reservations. (178) IHS began hiring nurses, pharmacists, and dentists; infrastructure improved; and referrals outside of IHS became possible. (179)

In 1973, the doctor draft ended, a tremendous decline in applications occurred, and IHS was left to recruit physicians in other ways. (180) Thus, in 1972 IHS used mass media for a recruitment campaign aimed at physicians and medical students "in an effort to sell them on the health needs, adventure, challenge, and personal fulfillment the Indian Health Service offered." (181) Many physicians came to IHS in the 1970s based on prior contact "with an IHS facility or with former IHS personnel," again showing prior contact in communities will attract professionals. (182) IHS also had much success in funding medical students--between 1970 and 1975, ninety percent or more of financial aid recipients honored their obligation to serve IHS. (183) IHS continues to promote their organization as a place that offers unique career rewards as well as a place to practice interesting medicine. (184) However, IHS continues to lose many physicians after the two-year contracts are fulfilled. (185)

Medical service continues to be an issue in Indian Country. (186) In South Dakota, however, discussions about increasing recruitment and placement of physicians continue. (187) Discussions have been initiated to establish a four-week preceptorship for second-year medical students at the Pine Ridge IHS. (188) Additionally, the Rapid City Regional Family Medicine Residency Program has been working with Aberdeen Area IHS (189) to create a rotation to the Pine Ridge and/or Rosebud IHS facilities. (190) Finally, the Sioux Falls Family Medicine Program is reviewing a collaborative agreement with the Aberdeen Area IHS to permit IHS as a site for elective residency rotation as well as a future rural training track site. (191)

While federal support has been relatively strong for medical services on reservations, the same cannot be said for legal services. (192) Many tribes had strong justice systems before European colonization of America, (193) but in the nineteenth century, the Federal Government disallowed tribes from having tribal courts, and instead established the Courts of Indian Offenses and police forces organized under and supervised by the BLA. (194) Progress occurred when, in the 1930s, many tribes "adopted written constitutions based on authorization by the BIA." (195) This began the period of the basic structure of contemporary tribal courts. (196) Currently, around 200 Indian tribal justice systems operate in Indian Country. (197) The BIA still has oversight of federal funding for tribal justice systems and often operates or funds courts, police, and other offices. (198) The continued federal involvement in tribal justice systems shows how "[c]ontemporary Indian systems of justice, including the tribal court system, are conditioned and constrained both by shifting United States federal Indian policy regarding Indian 'sovereignty' and a history of federal statutes." (199)

Like rural state courts, rural tribal courts are often underfunded and understaffed; finding a "competent judicial staff and network of professional resources" poses a challenge. (200) For example, "most tribal court judges are not full-time court officials[,]" (201) and many are not law-trained. (202) There are, however, some unified federal resources for tribal justice systems. There are training schools, such as the National Indian Justice Center (203) and the National Judicial College at Reno, Nevada, (204) that tribal judges can attend; however, a lack of financial resources hampers attendance. (205) Even though training is available, it is difficult to maintain staff once training has occurred, and it is difficult to acquire adequate funding to attract any staff to begin with. (206)

Judges in the tribal system face the challenge of upholding traditional community values regarding justice within the larger context of the non-Indian American legal system. (207) Whereas the culture in the United States as a whole promotes increasingly longer prison sentences, "[m]any tribal judges see their role primarily as being educational and secondarily punitive."" (209) This basic difference in philosophy leads to conflict between tribes and the BIA over appropriate criminal justice strategies. (210)

Differing cultural ideas of justice are only some of the myriad struggles faced by tribal courts--not the least problematic of which has been the oversight and support by the Federal Government. (211) "The structure, characteristics and concerns of contemporary tribal justice systems largely are due to federal legislation, the process of establishing reservations, shifting definitions of tribal political and legal status, and the fact that tribal courts are emerging cultural institutions." (212) A full analysis of federal laws impacting access to justice in Indian Country is outside the scope of this paper; however, several are worth mentioning. (213) In 1996, the Office of Economic Opportunity started to provide civil legal representation in Indian Country, beginning with two South Dakota reservations: Cheyenne River and Rosebud. (214) The service was transferred to the congressionally organized Legal Services Corporation in 1974 and today exists as Indian Legal Service programs. (215) The federal government enacted the Indian Tribal Justice Support Act of 1993 and in doing so affirmed that "tribal justice systems are an essential part of tribal governments." (216) Most recently, the federal government passed the Tribal Law and Order Act of 2010, (217) which modified and enhanced tribal control of justice systems, in part by incentivizing the provision of law-trained public defenders in tribal court by increasing the maximum sentencing capabilities. (218) Though the Act requires more lawyers in tribal courts, it does not provide funding. (219) Brendan Johnson, the Attorney General for the District of South Dakota, has developed programs allowing for federal support for tribal prosecutors, but not tribal defense counsel. While funding is still needed, the Tribal Law and Order Act of 2010 lays the groundwork for increased representation of criminal defendants in tribal court, which in turn will require greater access to lawyers. South Dakota's Indian Country stands to benefit greatly if Project Rural Practice is able to incentivize attorneys to return to reservations to practice law.

V. COMPARISON BETWEEN INCENTIVE PROGRAMS

Given that medical and legal services are intertwined and related, it makes sense to compare Project Rural Practice to existing incentive programs. Lawyers and medical professionals not only work together to serve the needs of rural communities, (221) but in many ways their training and careers follow similar trajectories. Yet, there are major differences. While paralegals contribute significantly to the legal profession, much like registered nurses contribute to the medical profession, a law degree is required for providing even basic legal services. (222) In comparison, the medical community has the intermediate layer of PAs and NPs who provide direct patient care in addition to physicians. (223) Lawyers require seven years of post-secondary education while physicians generally require eleven, including the years as a paid resident. This extended period of residency necessarily builds in additional training, which lawyers can easily miss. New lawyers are, and should be, hesitant to move to small towns and open solo practices because they simply have not had the equivalent of a residency to develop the skills needed to run a practice. (224) At this time, Project Rural Practice does not confront the issue of training new lawyers, but there are ways a program in South Dakota could approach this problem.

Even though there are significant differences between law and medicine, it is to the medical incentive programs we must look. No other states have attempted anything like Project Rural Practice, so the next best comparison is medical incentive programs. Data about South Dakota medical professionals have consistently shown the likelihood an individual will choose to practice in a rural area increases "if an individual grew up in a rural area, attended medical school in South Dakota, and completed a residency program in South Dakota." (225) For this reason, the State of South Dakota encourages communities to develop "grow your own" programs. (226) Both legal and medical programs focus on connecting students or professionals with rural communities. (227) The idea is that professionals, especially those from small towns, are more likely to practice in rural areas if they become professionally connected to those communities while in school or during their residency training. (228)

There are various ways South Dakota could facilitate the training of new lawyers so they could become competent to open solo practices in small towns. Neighboring states are addressing the issue by creating programs where law students connect to rural areas through summer internships. (229) For example, North Dakota has established a summer internship program with the goal of "giv[ing] the students a realistic idea of what rural practice is" and "providing] networking opportunities." (230) In order to encourage young lawyers to move to rural areas, South Dakota has to confront the notion that in order to be successful a professional must be urban. (231) While Project Rural Practice is appropriately available to any lawyer, not just graduates of the USD Law School, USD and its alumni stand to benefit from the program. (232) In the current economy, the most effective placement of law students is in rural communities and in small regional firms. (233) Thus, as a school, the USD Law School has an incentive to continue to place new law graduates in small firms and rural areas where job opportunities are available." (234) Much as North Dakota, Iowa, and Nebraska have done, the USD Law School can continue to increase placements of students at rural firms during the summers and encourage new lawyers to look outside of the State's largest cities. The work for USD and South Dakota does not end with Project Rural Practice. The medical school is already one of the top ten rural medical schools in the country, (235) yet the medical community recognizes the need to do more to encourage new physicians to stay in state, and thus has taken to developing more in-state residency programs. (236) Programs for health professionals have probably been so successful because the South Dakota medical community actively works together to support the various incentive programs. In the legal community, there has been similar cooperation and support for Project Rural Practice, (237) which hopefully will extend as incentivizing rural legal practice comes of age.

Even without these additional programs for law students, South Dakota is leading the trend toward incentivizing rural legal services. James R. Silkenat recently became the president of the ABA (238) and has placed the campaign for a "Legal Access Job Corps" at the top of his agenda. (239) Silkenat cites South Dakota as an initiative the ABA will review to determine whether such a program would be feasible at the national level. (240) Silkenat hopes to create a Legal Access Job Corps to address two issues: (1) meeting unmet legal needs of disadvantaged communities and (2) utilizing the oversupply of unemployed lawyers. (241) The concept put forth by the ABA is "to find ways to fund freshly minted attorneys who would be willing to locate to areas of unmet legal needs." (242) Silkenat proposes "payments to the lawyers ... be tied to their work on behalf of people who do not otherwise have access to lawyers or who cannot afford to hire lawyers." (243) The ABA is not limiting its initiative to rural areas, (244) although rural areas are certainly hit the hardest by the lawyer shortage. (245) The chances of a forthcoming program at the national level are long. Although some limited grant money is now available for the Legal Access Job Corps, (246) the ABA cannot fund a host of lawyers and not all communities or states will opt to do so. (247)

Funding is an obvious thorn in all of the programs this article discusses. (248) Project Rural Practice relies, in large part, on a contribution from participating counties. (249) While Project Rural Practice receives support from many entities in South Dakota, (250) the funding from the state government is not sufficient to sustain participants who then must rely on funding from localities. Therefore, before Project Rural Practice can support an individual attorney, the attorney must gain support from the county in which he or she wishes to practice. Project Rural Practice is not unique in requiring local funding; however, Project Rural Practice is unique because attorneys are not placed in existing businesses, but often start their own firms. With medical incentive programs, money can be drawn from local communities, but hospitals or clinics are already established and help to support the new healthcare providers.

Only one county has funded a lawyer through Project Rural Practice. (251) Douglas County, with a population of 3,800, is supporting a lawyer in Corsica. (252) A divided County Commissioners voted to allocate $500 a year instead of the requested $1200. (253) Corsica's development agency provided other support, including $9,975 in refurbishing a main street office and other incentives including free rent for the first year of occupancy as well as fifty percent off the second year of rent. (254) Tellingly, in Douglas County "it had been 'difficult' to do added fundraising for the program, as 'people typically see attorneys as extra' in their community." (255) The Commissioners in Douglas County were divided on the issue of funding. (256) Commissioner Sue Denning "said everyone probably agreed [Project Rural Practice] was a good program, 'but it comes down to the money--we don't have any.'" (257) Commissioner Ewald Fink noted how the county had taken away a tax incentive on a new farm and commercial construction and was uncomfortable funding Project Rural Practice in lieu of having recently cut other funding. (258)

The debate in Douglas County serves to show the importance of community support for new lawyers. While North Dakota has a similar lawyer shortage to South Dakota, the State of North Dakota has not provided state-wide support for new rural attorneys. Wishek, a town of about 1,000 people (259) in south-central North Dakota recently saw the retirement of the only attorney in town and the Wishek Job Development Authority has taken to advertising the "opening" on its Webpage (260) as well as with North Dakota and Minnesota law schools. (261) Wishek is advertising conditional incentives for an attorney who relocates, (262) which is how they successfully brought a new dentist to town several years ago. (263) To incentivize the relocation of an attorney, the Job Development Agency is offering help in finding office space and housing and will offer a low- or no-interest loan of up to $20,000 for start-up costs. (264) Wishek demonstrates the importance of having individual communities be in support of bringing in attorneys.

Looking beyond the financial support of Project Rural Practice, many of the ways in which South Dakota works to support rural hospitals and providers could be used to support rural law practices. For example, the South Dakota State Medical Association established the Center for Physician Resources to provide information and support to physicians. (265) The South Dakota Bar Association fulfills much the same role for attorneys; perhaps increasing support to solo rural attorneys is the next step. South Dakota utilizes telehealth resources; similar telecommunication techniques should be used to connect rural attorneys with specialists across the state. The State of South Dakota has provided funding to train rural hospitals for coding and billing, and the state has done an operational and financial assessment on four rural hospitals. (266) Similar training can and should be done for new attorneys in rural areas. A program could look similar to the incubator programs at some law schools, but focus on providing services to new rural attorneys. This process has begun with the South Dakota Rural Lawyer website, which provides information on Project Rural Practice and educational material on solo and rural law practice. (267) Even before additional educational and support services are in place, mentoring, which has successfully been used for many disadvantaged groups, can also be used to effectively help rural attorneys who are establishing their practices. (268)

Project Rural Practice has taken to heart the public media campaign used by IHS in the 1970s to recruit physicians, selling attorneys "on the [legal] needs, adventure, challenge, and personal fulfillment" of practicing law in a rural setting. (269) A study of IHS recruitment in the 1970s recommended IHS make appeals through the media to a physician's idealism and desire to fill a particular health need as well as with monetary incentives. (270) The same should be done in recruiting lawyers to rural areas. (271) Many law students go to law school with the desire to help disadvantaged populations--yet because of student loans many of those students abandon their goals and take law firm jobs. (272) Despite the success of the loan repayment system for physicians, (273) programs available for attorneys are very limited. (274) Advertising Project Rural Practice as allowing young attorneys to provide access to justice with financial support should be an effective way to recruit attorneys to small towns. Rural prejudice allows urban lawyers to assume a law practice in rural South Dakota could not possibly be economically viable, (275) yet lawyers can and do have strong legal practices even in the most remote parts of the state. (276) As an attorney from rural Nevada warns, "Do not make the mistake of confusing a lack of people with a lack of work." (277) Project Rural Practice and other programs are thus critical in bridging the gap for new attorneys who simply need help starting a legal practice, but once started can successfully serve a community for decades to come.

VI. CONCLUSION

With both medical professionals and lawyers, even losing one professional in a county can leave a large area without sufficient medical or legal services. (278) Once lost, regaining either of these services can be a daunting task for an isolated, rural community. With the right infrastructure, though, students and professionals can be convinced of the value and feasibility of practicing in a rural community. Governor Daugaard's Task Force concluded:

   The more exposure you can provide to students to the rural
   healthcare experience, the more confident they are in their
   abilities to practice in that setting. Providing expanded
   opportunities for healthcare students to gain experience working in
   rural communities makes them more familiar with the rewards and
   challenges of rural healthcare which in turn can help with
   recruitment and long-term retention of healthcare providers. (279)


The same can be said for legal training. Project Rural Practice is as-of-yet untested. However, Project Rural Practice can and should be compared to incentives programs for health professionals. More can be done to help the rural legal community in South Dakota--particularly providing additional opportunities for students--but Project Rural Practice is a strong step toward reestablishing a strong legal presence throughout South Dakota.

(1.) Karen Sloan, South Dakota Offers Subsidies to Lure Lawyers to Its Small Towns, Nat'L Law J., Apr. 1, 2013 (Lexis); S.D. C.L. [section][section] 16-23-1 to 11 (2004 & Supp. 2013).

(2.) S.D.C.L. [section] 16-23-1.

(3.) Elizabeth Grosz, Douglas County First In State To Participate In Rural Attorney Recruitment Program, YANKTON PRESS & DAKOTAN, Nov. 13, 2013, http://www.yankton.net/community/article_bc932114-4ce4-11e3-8b7c-001a4bcfB87a.html. Douglas County is the first county to participate. Id.

(4.) The Coal, of Concerned Colleagues, The Economics of Legal Education: A Concern of Colleagues (2013), http://www.americanbar.org/content/dam/aba/administrative/ professionalresponsibility/taskforcecomments/032013_coalition_revcomment.authcheckdam.pdf ("The federal government estimates that, at current graduation rates, the economy will create about one new legal job for every two law school graduates over the next decade."). See also BUREAU LABOR Statistics, U.S. Dep't Labor, Occupational Outlook Handbook, 2014-15 Edition, Lawyers (Jan. 26, 2014), available at http://www.bls.gov/ooh/legal/lawyers.htm ("[M]ore students are graduating from law school each year than there are jobs available.").

(5.) Ethan Bronner, No Lawyers for Miles, So One Rural State Offers Pay, N.Y. TIMES, Apr. 8, 2013, http://www.nytimes.com/2013/04/09/us/subsidy-seen-as-a-way-to-fill-a-need-for-rural lawyers.html?pagewanted=1&_r=0&ref=general&src=me. As examples: sixty-five percent of South Dakota's lawyers live in four of the State's urban areas; seventy-percent of Georgia lawyers are in the Atlanta area; ninety-four percent of Arizona's lawyers are the Maricopa and Pima counties; eighty-three percent of Texas lawyers are in and around Dallas, Houston, Austin and San Antonio. Id. In Minnesota, more than fifty-eight percent of all private practitioners have offices in Minneapolis's Hennepin County and another thirteen percent have offices in St. Paul's Ramsey County. Elizabeth Ahlin, Small Towns Pull Out Stops to Lure Legal Talent, MINNESOTA LAWYER, Nov. 21, 2013, http://minnlawyer.com/2013/11/21/wishek-n-d-wants-you/. In North Dakota, most lawyers live and work in metropolitan areas: only eighty-five of the state's 357 towns have lawyers with registered firm addresses. Anna Burleson, Attorneys Scarce in Rural North Dakota, IN FORUM, Mar. 22, 2014, https://secure.forumcomm.com/7publisher_niN 1&article_id=430127&CFID=222691252&CFTOKEN= 20322479; see also Amy Dalrymple, Faces of the Boom: Juggling Jobs Keeps Williston Attorney Busy Amid Boom, In FORUM, Feb. 16, 2014, https://secure.forumcomm.com/?publisher_ID=1&article_id=426 819&CFID-222691252&CFTOKEN=20322479 (discussing busy lawyers and expanding state's attorneys opportunities in western North Dakota). For a discussion of the history of rural practice in South Dakota, see Chief Justice David Gilbertson, Reflections on the Rural Practice of Law in South Dakota: Past, Present, and Future, 59 S.D. L. REV. 433 (2014).

(6.) See infra Part II; see also Rural CRIMINAL JUSTICE: CONDITIONS, CONSTRAINTS & Challenges (Thomas D. McDonald et al. eds., 1996).

(7.) Press Release, University of South Dakota, USD School of Law, South Dakota Law Review, to host Rural Practice Symposium, March 20-21 (Feb. 14, 2014), available at http://www.usd.edu/press/news/news.cfm?nid=2873.

(8.) Anne M. Bartol, Structures and Roles of Rural Courts, in RURAL CRIMINAL JUSTICE: Conditions, Constraints & Challenges 79, supra note 6, at 79.

(9.) Id. ("The academic study of courts also neglects the rural courtroom. With a few exceptions, almost exclusively, researchers focus on urban and suburban courts.").

(10.) Sloan, supra note 1.

(11.) See id. (quoting South Dakota Senator Mike Vehle).

(12.) Ethan Bronner, No Lawyers for Miles, So One Rural State Offers Pay, N.Y. TIMES, Apr. 8, 2013, http://www.nytimes.eom/2013/04/09/us/subsidy-seen-as-a-way-to-fill-a-need-for-rural-lawyers.ht ml?pagewanted=l&_r=0&ref=general&src=me (quoting Chief Justice David E. Gilbertson of the South Dakota Supreme Court).

(13.) James R. Silkenat, Connecting Supply and Demand: Legal Access Job Corps Will Place Law Grads in Areas with Unmet Legal Needs, 99 A.B.A. 8 (Oct. 2013), available at http://www.abajoumal.com/magazine/article/legal_accessjob_corps_will_place_law_grads_in_areas_w ith_unmet_legal_needs/.

(14.) Although the legal community understands that the use of "Indian" and "Indian Country" is not necessarily optimal, courts and the legal community continue to use "Indian" and "Indian Country" because of history and the specific meanings of the terms.

   The word "Indian" has acquired a legal meaning through the course
   of this nation's history. The origin of the word "Indian" dates
   back to the mistaken belief of early European explorers in North
   America that they had encountered people in the East Indies. While
   it is more appropriate in this era to refer to this nation's
   indigenous people as Native Americans or American Indians, this
   Opinion and Order uses the word "Indian" as that is the word used
   for two centuries in legal opinions to refer to the indigenous
   population of North America and has come to have a distinct legal
   meaning. See St. Cloud v. United States, 702 F. Supp. 1456, 1459-61
   (D.S.D. 1988) (delineating meaning of "Indian" under laws of United
   States); see also United States v. Stymiest, 581 F.3d 759, 763-64
   (8th Cir. 2009).


F.T.C. v. Payday Fin., LLC, 935 F. Supp. 2d 926, 929 n.1 (D.S.D. 2013). Like many courts, this essay employs the language of "Indian" and "Indian Country." See also Angelique Townsend Eaglewoman & Stacy L. Leeds, Mastering American Indian Law 4 (2013) (noting "Indian" is commonly used in legal writings and "Native American" is commonly used in academic literature).

(15.) John Donvan, Luring Doctors and Lawyers to Rural America, NPR, (May 1, 2013, 1:00 PM), http://www.npr.org/2013/05/01/180329738/efforts-to-reverse-rural-brain-drain (interviewing Patrick Goetzinger, co-chair, Project Rural Practice Task Force); Chief Justice David Gilbertson, South Dakota Unified Judicial System: State of the Judiciary Message 9 (2014), available at http://www.ujs.sd.gov/uploads/annual/fy2013/2014StateofJudiciary.pdf ("I have observed that South Dakota is becoming a state with islands of justice provided in the larger cities and a sea of justice denied in rural areas.").

(16.) Bartol, supra note 8, at 84-85 (internal citations omitted).

(17.) Debra Lyn Bassett, Ruralism, 88 IOWA L. Rev. 273, 276-80 (2003).

(18.) Carroll Edmondson, Rural Courts, the Rural Community and the Challenge of Change, in Rural Criminal Justice: Conditions, Constraints & Challenges 93, supra note 6, at 93.

(19.) See, e.g., John A. Goerdt et. al., Litigation Dimensions: Torts and Contracts in Large Urban Courts, 19 St. Ct. J. 1 (1995); Stephen Demuth & Darrell Steffensmeier, Ethnicity Effects on Sentence Outcomes in Large Urban Courts: Comparisons Among White, Black, and Hispanic Defendants, 85 SOC. SCI. Q. 994 (2004).

(20.) Bartol, supra note 8, at 79.

(21.) Bassett, supra note 17, at 301.

(22.) Bartol, supra note 8, at 79.

(23.) Wat 81.

(24.) Id.; Edmondson, supra note 18, at 101 ("Although rural courts' workloads are substantially lighter than those of urban courts, their processing times are only marginally better. To a certain extent, the slower-than-anticipated pace of litigation in rural courts may reflect their lower recourse levels or their reduced court schedules because of circuit riding." (internal citations omitted)).

(25.) Bartol, supra note 8, at 81-82.

(26.) Edmondson, supra note 18, at 97. While not a problem particularly relevant to this paper, judgeships are also often negatively impacted by rurality because rural courts have historically been more likely to be staffed by non-lawyer judges. Bartol, supra note 8, at 80 (noting that as of 1996, 42 states authorized courts of limited jurisdiction to be staffed by non-lawyer judges); Edmondson, supra note 18, at 97-98 (discussing the use of lay judges in rural areas because of a lack of available lawyers and the prosecutorial bias of those lay judges).

(27.) See Bronner, supra note 12.

(28.) See, e.g., Ahlin, supra note 5 (discussing Wishek, North Dakota seeking a new attorney and thinking "[t]he right lawyers ... could serve the town of about 1,000 people ... for decades to come.").

(29.) Burleson, supra note 5 (noting an issue with rural practice is that "a single lawyer in a small town can't represent clients who have conflicts with each other, such as in divorce.").

(30.) Kathryn Fahnestock, The Loneliness of Command: One Perspective on Judicial Isolation, 30 JUDGES J. 13, 14 (1991) ("Over half of the rural counties in the United States rely on part-time prosecutors."). Even when rural counties have a full-time prosecutor, the work-load can be too much for one attorney. See, e.g., Stephanie Norman, Buried Under Pending Court Cases, MCKENZIE COUNTY FARMER, Apr. 1, 2014, http://www.watfordcitynd.com/?id=10&nid=2652 (discussing the heavy caseload in McKenzie County, North Dakota).

(31.) See Judith Meierhenry, Confidentiality and Conflicts of Interest: A Guide for South Dakota Lawyers, 59 S.D. L. REV. 557 (2014) (discussing conflict of interest dilemmas for lawyers practicing in South Dakota's most sparsely populated rural communities); Lisa Pruitt & Bradley Showman, Law Stretched Thin: Access to Justice in Rural America, 59 S.D. L. Rev. 466, 490-92 (2014) (discussing economic and ethical conflicts of interest in rural areas); Edmondson, supra note 18, at 97 ("Part-time judges who are attorneys and part-time prosecutors who have their own private practices invariably become entangled in either actual or perceived conflict of interest problems."); Steve Evenson, Rural Lawyers in the Changing Marketplace, 30 GP SOLO 1, (2013), available at http://www.americanbar.org/publications/gp_solo/2013/january_february/rural_lawyers_changing_mark etplace.html (noting "[n]o matter how far apart the towns, no matter the differences in the type of community (mining or agricultural, for example), I never cease to be amazed by how many in rural areas are related to other people in rural areas hundreds of miles away. This is ... important because of conflicts.").

(32.) Edmondson, supra note 18, at 97.

(33.) Id. at 101.

(34.) Bartol, supra note 8, at 85. This can create problems beyond mere representation in trial court--if there is a lack of a sufficient defense pool, those convicted in rural areas may challenge their convictions on the basis of inadequate assistance of counsel. Randall R. Beger, Rural Juvenile Courts: A Structural Assessment, in CRIMINAL JUSTICE IN RURAL AMERICA 173, 183 (Shanler D. Cronk, et al., eds., 1982) (citing studies from Kentucky and Minnesota).

(35.) Edmondson, supra note 18, at 93.

(36.) Id. at 103 (citation omitted).

(37.) See id.

(38.) Id.

(39.) Pruitt & Showman, supra note 31, at 504-07.; Bartol, supra note 8, at 82. For a discussion of rural practice and long drives in Nevada see Evenson, supra note 31.

(40.) Bartol, supra note 8, at 82.

(41.) Gilbertson, supra note 15, at 9.

(42.) Id. at 10 ("South Dakota is the first state in the nation to undertake a progressive response to overcome [the shortage of rural attorneys].").

(43.) Stephanie Stephens, Los Angeles, Orange Counties Grapple With Shortage of Nursing Instructors, CALIFORNIA HEALTHLINE, Jan. 2, 2014, http://www.califomiahealthline.org/insight/2014/los-angeles-orange-counties-grapple-with-shortage-ofnursing-instmctors (discussing shortage of nursing instructors in California); Noell Dickmann, UW Program Aims To Avert Nursing Shortage, The NORTHWESTERN.COM, Jan. 20, 2014, http://www.thenorthwestem.com/article/20140120/OSHO101/301200303/UW-program-aims-avertnursing-shortage (discussing nursing shortage in Wisconsin); Michael Chesney, Del. Facing Looming Nursing Shortage, WBOC16, Dec. 30, 2013, http://www.wboc.com/story/24330864/del-facing-loomingnursing-shortage (discussing nursing shortage in Delaware); Bruce Jaspen, Doctor Wait Times Rise as Obamacare Rolls Out, FORBES, Jan 29, 2014, http://www.forbes.com/sites/bmcejapsen/2014/01/29/doc tor-wait-times-rise-as-obamacare-rolls-out/ ('"Finding a physician who can see you today, or three weeks from today, can be a challenge, even in urban areas where there is a high ratio of physicians per population,' said Mark Smith, president of Merritt Flawkins. 'The demand for doctors is simply outstripping the supply.'").

(44.) Heather Collier, Physician Assistants Help Fill Gap in Primary Care Needs, SOUTHEAST MISSOURIAN, Jan. 20, 2014, http://www.semissourian.com/story/2042642.html.

(45.) Jon Walker, S.D. May Condense Medical School For Some, USA TODAY, Feb. 12, 2013, http://www.usatoday.com/story/news/nation/2013/02/12/south-dakota-shorter-medical-school/1914439/.

(46.) Governor Daugaard's Primary Care Task Force Final Report 1 (Dec. 2012), http://doh.sd.gov/PrimaryCare/assets/PrimaryCareReport.pdf [hereinafter, Primary Care Report].

(47.) More South Dakota Doctors, SD WINS http://www.southdakotawins.com/ promotingruralhealthoccupations/moresddoctors/ (last visited Apr. 11,2014).

(48.) Katy Murphy, Too Many Lawyers, Too Few Jobs, The Seattle TIMES Oct. 8, 2013, http://seattletimes.com/html/businesstechnology/2021994037_lawschoolsxml.html; Stephen J. Harper, American Has Way Too Many Lawyers, And The Bubble Is Growing, BUSINESS INSIDER July 30, 2013, http://www.businessinsider.com/america-has-way-too-many-lawyers-and-the-bubble-is-growing-2013-7.

(49.) Primary Care Report, supra note 46, at 2.

(50.) Id. at 4-8.

(51.) Id. at 2. This is all with changing demographics which make it difficult to produce sufficient workers: "The number of high school graduates is expected to decrease by 17% between 2002 and 2018 while the elderly population in South Dakota is expected to double by 2025." Id.

(52.) Id. at 2. Further compounding the difficulty in incentivizing professionals to move to rural areas is a problem in base-level education--education is worse in rural areas, Bassett, supra note 17, at 306-07, meaning communities will continue to struggle to "grow their own" professionals so long as education is failing.

(53.) Walker, supra note 45.

(54.) Primary Care Report, supra note 46, at 2 ("Health professionals in South Dakota are concentrated in the state's most populous areas while rural areas face continuing challenges in recruiting and retaining healthcare providers.").

(55.) Id.; SD WINS, supra note 47.

(56.) SD WINS, supra note 47. Geographic shortage areas include the entirety of Harding, Perkins, Corson, Ziebach, Dewey, Campbell, McPherson, Edmunds, Potter, Sully, Hyde, Marshall, Roberts, Clark, Hamlin, Deuel, Kingsbury, Miner, McCook, Turner, Douglas, Aurora, Jerauld, Lyman, Jones, Mellette, Todd, Jackson, Bennett, Shannon, and Custer Counties, and parts of Butte, Meade, Pennington, Brown, Buffalo, Gregory, Sanborn, Davison, Hanson, Lincoln, Clay, and Union Counties. S.D. Dep't of Health, South Dakota Health Professional Shortage Areas Primary Medical Care (2013), available at http://doh.sd.gov/documents/Providers/RuralHealth/HPSA.pdf. Income shortage areas include Fall River, Haakon, Walworth, Tripp, Faulk, Hand, Spink, Day, Charles Mix, Hutchinson, and Bon Homme counties. Id.

(57.) Bassett, supra note 17, at 318.

(58.) Id.

(59.) See Kathryn Fahnestock, The Loneliness of Command: One Perspective on Judicial Isolation, 30 Judges' J. 13, 18 (1991) ("Social and mental health services, from effective alcohol treatment to qualified child psychiatrists, are generally many miles away.").

(60.) Primary Care Report, supra note 46, at 13.

(61.) Id.

(62.) Id. at 2 ("To address this challenge [of healthcare provider shortages], Governor Daugaard appointed a Primary Care Task Force to consider and make recommendations to ensure accessibility to primary care for all South Dakotans--particularly those in rural areas of the state."). The Primary Care Task Force was tasked with reporting on primary care for all of South Dakota, but with an emphasis on rural areas. Id. In this study and recommendation, the task force defined primary care "as family medicine, general medicine, internal medicine, obstetrics/ gynecology, and pediatrics." Id.

(63.) See id.

(64.) See, e.g., Collier, supra note 44 (discussing physicians assistants in Missouri) and JoNel Aleccia, Bracing for Obamacare: Nurse Practitioners Fill Doc Shortage Gap, NBC Aug. 9 2013, http://www.nbcnews.com/health/bracing-obamacare-nurse-practitioners-fill-doc-shortage-gap6C10849957.

(65.) Primary Care Report, supra note 46, at 5.

(66.) Id. The nineteen states with no primary care medical doctors in 2011 were Harding, Perkins, Corson, Ziebach, Jackson, Stanley, Jones, Mellette, Lyman, Flyde, Sully, Potter, Edmunds, Clark, Hamlin, Aurora, Sanborn, Miner, and Hanson Counties. Id.

(67.) Id.

(68.) Id. at 6. The full list of nine counties without a PA in 2011 included: Ziebach, Jackson, Jones, Sanborn, Hanson, McPherson, Hand, Turner, and Deuel Counties. Id.

(69.) Id. The counties with no CNP are Harding, Perkins, Corson, Shannon, Mellette, Haakon, Stanley, Lyman, Hyde, Buffalo, Jerauld, Hanson, Campbell, McPherson, Spink, Clark, Day, and Marshall Counties. Id.

(70.) Id.

(71.) Id. at 7.

(72.) Not all of the "pipeline" efforts are relevant to this paper because many of the programs focus on young students who have not yet entered professional programs:

   The South Dakota Department of Health has several programs designed
   to encourage middle and high school students to consider careers in
   healthcare such as Health Occupations for Today and Tomorrow
   (HOTT), Scrubs Camps, Camp Meds, and Community Healthcare-workforce
   Allies through Mentoring, Partnership, and Solutions (CHAMPS). In
   addition, the South Dakota Department of Education supports
   Skills USA and career clusters (including a Health Science cluster).
   The South Dakota Area Health Education Center (SD AHEC) supports
   Health Occupation Students of America (HOSA) which is a student-led
   organization aimed at nurturing healthcare career interests of
   students through projects, healthcare procedures, and skill
   development.


Id. at 7-8. For the success story of these types of programs, see B.L. Azure, Family Nurse Practitioner Milissa Grandchamp Joins Poison THHS Clinic, CHAR-KOOSTA News, Feb. 6, 2014, http://www.charkoosta.com/2014/2014_02_06/Milissa_GrandchampJoins_Polson_THHS_clinic.html ("'I didn't have a role model. None of my immediate family were involved in health care,' [said Family Nurse Practitioner Milissa Grandchamp], adding that while in high school she participated in the Indians into Medicine (INMED) program at the University of South Dakota. 'I got into the medical profession so I could help the Native American community live a healthier life so we don't have so many health care issues on the reservation....'").

(73.) SANFORD SCH. Med., About Us. http://www.usd.edu/medical-school/about-us.cfm (last visited Apr. 14, 2014).

(74.) Primary Care Report, supra note 46, at 8; SD WINS, supra note 47. No consensus was reached on the need to further expand the medical school. As of the 2012 legislative session, further expansion was put on hold until additional information was gathered regarding third-year clinical placements as well as the costs of potential future expansions. Primary Care Report, supra note 46, at 11-12.

(75.) Governor Daugaard's Primary Care Task Force Oversight Committee Annual Report (Nov. 3, 2013) http://doh.sd.gov/primarycare/documents/2013_oversight_report.pdf [hereinafter "Oversight Committee"].

(76.) Primary Care Report, supra note 46, at 8.

(77.) SANFORD SCH. OF MED., Rural Track Program, http://www.usd.edu/medical-school/medicaldoctor-program/farm.cfm (last visited Apr. 14, 2014).

(78.) Primary Care Report, supra note 46, at 8.

(79.) Id. at 9.

(80.) Id.

(81.) Id. These spots are allocated as such and thus are set. Id. "Of the 305 graduates to date, 149 are practicing in South Dakota and of those, 31% are practicing in towns with a population of less than 10,000 and another 28% are practicing in towns with populations between 10,000-50,000." Id.

(82.) Collier, supra note 44 (citing the Bureau of Labor Statistics in discussing how PAs are one of the fastest growing career fields nationwide).

(83.) Id. (discussing PAs and citing the American Academy of Physician Assistants, and discussing physicians and citing the Bureau of Labor Statistics).

(84.) Oversight Committee, supra note 75, at 2.

(85.) Id.

(86.) Id.

(87.) Primary Care Report, supra note 46, at 9. "Of the SDSU nurse practitioner graduates practicing in South Dakota, about 45% work in the Sioux Falls area while the other 55% work throughout South Dakota." Id.

(88.) Oversight Committee, supra note 75, at 2.

(89.) Id.

(90.) Stephens, supra note 43 ("[increases in registered nurse staffing are associated with reductions in hospital-related mortality and failure to rescue (death after a treatable complication) as well as reduced lengths of stays. Additionally, patients who have common surgeries in hospitals with the worst nurse staffing levels have up to a 31% increased chance of dying.").

(91.) Dickmann, supra note 43; Chesney, supra note 43; Stephens, supra note 43.

(92.) Four-Year Bachelor's Degree in Nursing Earns Full Accreditation. HEALTHCARE Workforce Update (S.D. Healthcare Workforce Ctr.), June 2013 at 4, available at http://healthcareers.sd.gov/documents/HWI%20Newsletter%20June%202013.pdf. 4

(93.) Id.

(94.) Nurse Anesthesia, MOUNT Marty COLLEGE, http://www.mtmc.edu/msna/ (last visited Apr. 15, 2014). The program is accredited and leads to a Master of Science degree for students who already had a bachelor degree in nursing or bio-medical science. Id.

(95.) See Primary Care Report, supra note 46, at 7-8.

(96.) Id. at 8.

(97.) Id

(98.) Id

(99.) Id.

(100.) Oversight Committee, supra note 75, at 6. The ten communities are: Custer, Miller, Parkston, Philip, Platte, Redfield, Sisseton, Wagner, Wessington Springs, and Winner. Id.

(101.) Primary Care Report, supra note 46, at 8; Press Release, University of South Dakota, Clinical Sites Chosen for School of Medicine's FARM Program (Aug. 24, 2013), available at http://www.usd.edu/press/news/news.cfm?nid=2479 [hereinafter Clinical Sites Chosen],

(102.) Primary Care Report, supra note 46, at 8; Clinical Sites Chosen, supra note 101.

(103.) Jilanne Doom, The Farm Program Gives Students Opportunity To Study In Rural Community Hospitals, South Dakota Public Broadcasting (Jan. 28, 2013), http://listen.sdpb.org/post/farmprogram-gives-students- opportunity-study-rural-community-hospitals.

(104.) Primary Care Report, supra note 46, at 8.

(105.) Clinical Sites Chosen, supra note 101.

(106.) Primary Care Report, supra note 46, at 8 (discussing number of students); Rural Track Program, supra note 77; Doom, supra note 103 (discussing source of funding).

(107.) Clinical Sites Chosen, supra note 101.

(108.) Id.

(109.) Oversight Committee, supra note 75, at 2. These students are part of the class of 2016 and would have begun their rotations during 2014. See id.

(110.) Primary Care Report, supra note 46, at 9.

(111.) South Dakota is not alone in this fight. The Federal Government has a related program, the National Health Service Corps ("NHSC"). See National Health Service Corps, http://nhsc.hrsa.gov/ (last visited Apr. 15, 2014).

(112.) The medical resident license replaces the resident training permit and resident certificate, which were previously issued. Oversight Committee, supra note 75, at 2.

(113.) Id. at 2. SB 118 went into effect July 1, 2013, and as of November 2013, 142 medical resident licenses had been issued in South Dakota. Id. at 2.

(114.) Id.

(115.) Primary Care Report, supra note 46, at 10.

(116.) Oversight Committee, supra note 75, at 13.

(117.) Id.; S.D.C.L. [section][section] 1-16A-64 to 1-16A-70 (2012).

(118.) Primary Care Report, supra note 46, at 10.

(119.) Id.

(120.) Id.

(121.) Affordable Care Act helps National Health Service Corps Increase Access to Primary Care, Health Res. and Servs. Admin. (Nov. 26,2013), http://www.hrsa.gov/about/news/pressreleases/131 126nhsc.html [hereinafter "Affordable Care Act"].

(122.) Id.; Health Res. and Servs. Admin., Helping Primary Care Clinicians Practice in the Communities Where They are Needed Most: National Health Service Corps Loan REPAYMENT AND Scholarships 1 (2013), available at http://nhsc.hrsa.gov/currentmembers/fieldstreng th.pdf [hereinafter "HELPING PRIMARY CARE CLINICIANS"].

(123.) Helping Primary Care Clinicians, supra note 122, at 3.

(124.) Affordable Care Act, supra note 121.

(125.) Id.

(126.) Helping Primary Care Clinicians, supra note 122, at 3. South Dakota is neither the worst supported nor the best supported state. See id. at 2-3.

(127.) Id. at 3. "Similar to the NHSC Loan Repayment Program, participants in the state programs provide primary health services in high need areas in exchange for repayment of their qualifying educational loans. States are required to match federal grant funds dollar-for-dollar with non-federal funds." Id

(128.) See SD WINS, supra note 47; Primary Care Report, supra note 46, at 10.

(129.) Primary Care Report, supra note 46, at 10.

(130.) Id.

(131.) Id.

(132.) Id.

(133.) Doom, supra note 103; Primary Care Report, supra note 46, at 10.

(134.) Primary Care Report, supra note 46, at 10; 2013 Rural Healthcare Facility Recruitment Assistance Program, Healthcare WORKFORCE UPDATE (S.D. Healthcare Workforce Ctr.), June 2013 at 2, available at http://healthcareers.sd.gov/documents/HWI%20Newsletter%20June%202013.pdf.

(135.) These sixty placements filled the capacity of the program. Oversight Committee, supra note 75, at 2.

(136.) 2013 Rural Healthcare Facility Recruitment Assistance Program, supra note 134, at 2.

(137.) Doom, supra note 106.

(138.) There were 2 PAs and 3 NPs placed. Oversight Committee, supra note 75, at 2.

(139.) Id.

(140.) 2013 Rural Healthcare Facility Recruitment Assistance Program, supra note 134, at 2.

(141.) Id.

(142.) Graduate Medical Education, HEALTHCARE WORKFORCE UPDATE (S.D. Healthcare Workforce Ctr.), June 2013 at 2, available at http://healthcareers.sd.gov/documents/HWI%20Newsletter%20June%202013.pdf.

(143.) See, e.g., Stephanie McCrummen, In Rural Kentucky, Health-Care Debate Takes Back Seal as the Long-Uninsured Line Up, THE WASHINGTON POST, Nov. 23, 2013, http://www.washingtonpost.com/national/in-rural-kentucky-health-care-debate-takes-back-seat-aspeople-sign-up-for- insurance/2013/1 l/23/449dc6e0-5465-l Ie3-9e2c-eld01116fd98_story.html (discussing how, in Breathitt County, Kentucky, the poor rural community is signing up for health insurance in force under provisions of the Affordable Care Act and many will be seeking long-awaited medical care); Susanna Capelouto, Rural Regions Lobby For State Medicaid Expansion, N.P.R., Jan. 20, 2014, http://www.npr.org/2014/01/20/264250008/rural-regions-lobby-for-state-medicaid-expansion (discussing issues at rural hospitals in Georgia, a state which has opted out of Medicaid expansion under the Affordable Care Act).

(144.) Aleccia, supra note 64.

(145.) See supra, note 14.

(146.) There are nine separate operating tribal governments in South Dakota and Native Americans make up about nine percent of South Dakota's population. SOUTH DAKOTA INDIAN Bar ASSOCIATION, http://www.sdicba.org/ (last visited Apr. 17, 2014)

(147.) Felix S. Cohen, Cohen's Handbook of Federal Indian Law [section] 5.04[3][b] (Nell Jessup Newton et al. eds., 2012) [hereinafter "COHEN'S HANDBOOK"].

(148.) Paul Brodeur, Programs to Improve the Health of Native Americans, 19th Annual Wash. U. IN ST. LOUIS POW WOW (Kathryn M. Bruder Ctr. for Am. Indian Studies), Mar. 28, 2009, at 13, (quoting Senator Daniel Inouye), available at http://buder.wustl.edu/Program/Documents/Spring%202009%20Ne wsletter.pdf.

(149.) "Few bright spots exist in the shared history of the American Indians and the federal government." Abraham B. Bergman et al., A Political History of the Indian Health Service, 77 MlLBANKQ. 571, 571 (1999).

(150.) For example, excluding tribes from decision-making processes has been a substantial barrier to the effectiveness of IHS. Id. at 585 ("Until the late 1960s, services for Indians were conducted on their behalf but without their involvement.").

(151.) Id. at 571 ("A notable exception [in the history of tribes and the federal government] is the sustained campaign by a little-known agency, the Indian Health Service (IHS), to improve the health of this population.").

(152.) Id. at 571-72 ("[F]rom 1955 to 1994 the disparity between the health of Indians and other U.S. population groups greatly narrowed, an accomplishment for which the IHS deserves some credit.").

(153.) Caitlin O'Neil, The History of Health Care on the Reservation, KERA, http://www.pbs.org/wgbh/mystery/american/navajoland/modmedicine.html (last visited May 12, 2014).

(154.) Bergman, supra note 149 at 576. Health services were housed in the War Department because at the time, federal Indian policy was "primarily oriented toward military containment." Id.

(155.) For example, "[t]he earliest Western doctors clashed with the Navajo. The doctors fought to enforce their own modern traditions and to terminate the influence of the traditional medicine men." Ellen L. Rothman, Letter from Kayenta: Crossing Cultures, HARVARD MAGAZINE, Sept.-Oct. 2002, available at http://harvardmagazine.com/2002/09/letter-ffom-kayenta.html.

(156.) Bergman, supra note 149 at 577.

(157.) Snyder Act, eh. 115, 42 Stat. 208 (1921) (codified as amended at 25 U.S.C. [section] 13 (2012)).

(158.) Bergman, supra note 149 at 591.

(159.) Ralph Forquera, Urban Indian Health, ISSUE BRIEF (The Henry J. Kaiser Family Found.), Nov. 2001, at 1, available at http://s21119.gridserver.eom/wp-content/uploads/2007/07/2001issue-briefurban-indian- health.pdf; Bergman, supra note 149 at 577. The formation of IHS was inspired by the spread of tuberculosis among Indians during World War II, where between ten percent and twenty five percent of drafted Indians had to be sent home because of active tuberculosis. Apparently this was scandal enough to force the federal government to act with regard to health care on the reservations. Id. at 577-78 (quoting James R. Shaw, first director of IHS).

(160.) Forquera, supra note 159, at 6.

(161.) Bergman, supra note 149, at 573.

(162.) Forquera, supra note 159, at 6.

(163.) Bergman, supra note 149, at 592. For the Rapid City facility see PGY-1 Pharmacy Residency. Pharmacy Residency Program, INDIAN HEALTH SERVS., http://www.ihs.gov/pharmacy/resident/index.cfm?module=rapidcity (last visited May 12,2014).

(164.) Forquera, supra note 159, at 6-7. In fact, advocates for urban Indian health take issue with IHS's emphasis on rural communities because of an ever-increasing urban population of American Indians. See id.

(165.) For a history of how Senator Abourezk of South Dakota was involved in the legislative process, see Bergman, supra note 149 at 591-92.

(166.) Bergman, supra note 149, at 600.

(167.) Id.

(168.) See id. at 577 (discussing shortages in the 1950s); C.L. Hostetter & J.D. Felsen, Multiple Variable Motivators Involves in the Recruitment of Physicians for the Indian Health Service, 90 PUB. HEALTH REP. 319, 319 (1975) (discussing shortages in the 1970s).

(169.) Hostetter & Felsen, supra note 168, at 320.

(170.) Bergman, supra note 149, at 577 (quoting James R. Shaw, "who was detailed by the PHS to the BIA and was later to become the first director of the IHS").

(171.) Id. (quoting James R. Shaw).

(172.) Id. at 580.

(173.) Id

(174.) Melissa K. Klein, The Legacy of the "Yellow Berets": The Vietnam War, the Doctor Draft, and the NIH Associate Training Program 3 (Nat'l Inst, of Health, 1998) (unpublished manuscript) (on file with NIH History Office) http://history.nih.gov/research/downloads/YellowBerets.pdf.

(175.) Id. at 3-4. IHS was not the only place PHS physicians were placed. Stations "included the Public Health Service Headquarters, PFIS Hospitals in major cities, ... the National Center for Urban and Industrial Health, the National Communicable Disease Center [ ], the Arctic Health Research Center, and, most notably, the Associate Training Program at [National Institute of Health]." Id.

(176.) Bergman, supra note 149, at 580.

(177.) Id.

(178.) Id.; O'Neil, supra note 153 ("The[] physicians [arriving with the doctor draft] possessed a greater appreciation for and sensitivity to Navajo ways while demonstrating the power to cure tuberculosis and other reservation scourges untouched by traditional medicine. Ever pragmatic, the Navajo began to accept that Western medicine was more effective for some diseases, while traditional ways worked for others.")

(179.) Bergman, supra note 149, at 580.

(180.) Hostetter & Felsen, supra note 168, at 319, 323.

(181.) Id. at 319.

(182.) Id. at 321-23 ("The high proportion (74 of 129) of physicians indicating that some kind of personal contact or personal experience prompted them to seek IHS employment further suggests personal contact as an area for emphasis in recruitment.").

(183.) Id. at 323.

(184.) See Career Paths and Benefits, INDIAN HEALTH SERVS., http://www.ihs.gov/physicians/index.cfm?module=careers (last visited May 15, 2014). ("Each opportunity offers unique career rewards, competitive compensation based on training and experience, a comprehensive benefits package and specific eligibility requirements.").

(185.) Rothman, supra note 155 ("Our Navajo community has internalized this pervasive transience and approaches [IHS physicians] with hesitation, protecting themselves from inevitable loss.").

(186.) See id. (discussing rurality and distance from the Federal Government as reasons healthcare is precarious).

(187.) Oversight Committee, supra note 75, at 5.

(188.) Id.

(189.) Aberdeen Area IHS is the regional center for IHS and cover North Dakota, South Dakota, Nebraska, and Iowa. Welcome to the Aberdeen Area of the Indian Health Service, IHS, http://www.ihs.gov/aberdeen/ (last visited May 19, 2014).

(190.) Oversight Committee, supra note 75, at 5.

(191.) Id.

(192.) See generally Melissa A. Pflug, American Indian Justice Systems and Tribal Courts in Rural "Indian Country", in Rural CRIMINAL JUSTICE: CONDITIONS, CONSTRAINTS & CHALLENGES, supra note 6, at 191.

(193.) Cohen's Handbook, supra note 147, at [section] 22.07[1][a].

(194.) Id. at 22.07[1][d][i]; Pflug, supra note 192, at 193.

(195.) Pflug, supra note 192, at 201.

(196.) Id.

(197.) EAGLEWOMAN & LEEDS, supra note 14, at 41; see also Pflug, supra note 192, at 191 (discussing around 150 operating tribal justice systems in 1996).

(198.) EAGLEWOMAN & Leeds, supra note 14, at 41. The BIA has this authority based on the Indian Self-Determination and Education Assistance Act of 1975, which allows tribes to enter into contracts with the BIA. Id.

(199.) Pflug, supra note 192, at 191. For a personal narrative discussion of judgeship in a tribal court, see Heather Steinberger, Living Her Dream: Eldena Bear Don't Walk Discusses Her Law Career, Indian Country Today Media Network (Feb. 10, 2014), http://indiancountrytodaymedianetwork.com/ 2014/02/10/living-her-dream-eldena-bear-dont-walkdiscusses-her-law-career-153362?page=0%2C0.

(200.) Pflug, supra note 192, at 208.

(201.) Id. at 192; Steinberger, Living Her Dream, supra note 199 (discussing an attorney who has a private law firm and serves as "an associate appellate judge for the Ponca Tribe of Nebraska; a substitute justice of the peace for the Lake County Justice Court in Poison, Montana; a pro-tem administrative law judge for Montana's Fort Belknap Indian Community; an associate appellate justice for the Chippewa Cree in Box Elder, Montana; and a chief appellate justice for Montana's Confederated Salish and Kootenai Tribes.").

(202.) See, e.g., Heather Steinberger, Historical Ties to Legal System Help Crow Tribal Court Judges, Indian Country Today Media Network (Feb. 11, 2014), http://indiancountrytodaymedianetwork.eom/2014/02/11/historical-ties-legal-system-help-crow-tribalcourt-judges-153363 (discussing the justices of the Crow Tribal Court in Crow Agency, Montana for the 2014-2018 term, none of whom hold a juris doctorate degree).

(203.) Nat'l Indian Justice Center, www.nijc.org (last visited May 20,2014).

(204.) See, e.g., Steinberger, Historical Ties, supra note 202 (discussing how one justice of the Crow Tribal Court received his law training solely through the National Judicial College). The National Judicial College trains judges of all levels, both domestic and foreign. Tribal judges have long attended the National Judicial College, and in 2002 the college developed a specific curriculum for tribal judges, which is housed in the National Tribal Judicial Center. A Legacy of Learning, THE NATIONAL JUDICIAL COLLEGE, http://www.judges.org/about/history.html (last visited May 20, 2014).

(205.) Pflug, supra note 192, at 208.

(206.) Id.

(207.) Id. at 192.

(208.) See Saki Knafo, Life Sentences On The Rise, Despite Growing Efforts to Reform Prison System, Huffington Post (Sept. 18, 2013, 2:02 PM), http://www.huffingtonpost.eom/2013/09/18/lifesentences_n_3948910.html; John Tierney, Prison and the Poverty Trap, N.Y. TIMES, Feb. 18, 2013, http://www.nytimes.com/2013/02/19/science/long-prison-terms-eyed-as-contributing-topoverty.html?pagewanted=all&_r=0.

(209.) Pflug, supra note 192, at 204-05. Jail terms are disfavored in Indian communities because of cost and because of a historical cultural reliance on compensation rather than retribution in response to crime. Id. at 205. Historically, "[t]hose who violated tribal laws would be dealt consequences in line with the tribal philosophy of bringing the community back into balance. These concepts of community balance between the perpetrator and society have been adapted by the restorative justice movement in the United States." EAGLEWOMAN & LEEDS, supra note 14, at 40.

(210.) Pflug, supra note 192, at 209 (discussing example of the Reservation Law Enforcement Plan introduced in 1977 through the Division of Law Enforcement Services).

(211.) See EAGLEWOMAN & LEEDS, supra note 14, at 41.

(212.) Pflug, supra note 192, at 201.

(213.) For a discussion of federal legislation impacting justice in Indian Country see COHEN'S HANDBOOK, supra note 147, at [section] 22.07[1] - [2].

(214.) The Zuni Reservation was the third reservation that saw services during the first year. Id. at [section] 22.07[2],

(215.) Id

(216.) 25 U.S.C. [section][section] 3601(2), (5) & (8) (2013); see also COHEN'S HANDBOOK, supra note 147, at [section] 22.07[1][d][i],

(217.) 25 U.S.C. [section] 3681 (2013).

(218.) EAGLEWOMAN & LEEDS, supra note 14, at 42; COHEN'S HANDBOOK, supra note 147, at [section] 22.07[1] [a],

(219.) Steinberger, Living Her Dream, supra note 199 ("The legislation is important because it puts issues affecting Indian country into the minds of those in Congress, but without the necessary funding, there may not be enough strength behind the law.").

(220.) See Brendan Johnson, U.S. Dist. Attorney, Statement, Address Before the Committee on Indian Affairs, in Tribal Law and Order Act One Year Later: Have We Improved Public Safety and Justice Throughout Indian Country?, Sept. 2011, at 15-16, available at http://www.gpo.gov/fdsys/pkg/CHRG-112shrg73817/pdf/CHRG-112shrg73817.pdf.

(221.) Among other ways the professions are related, medical professionals are expert witnesses in criminal and civil cases, and criminal defendants intending to pursue an insanity defense are constitutionally entitled to the assistance of a psychiatrist to prepare for that defense. Ake v. Oklahoma, 470 U.S. 68, 83 (1985). The Court concluded,

   We therefore hold that when a defendant demonstrates to the trial
   judge that his sanity at the time of the offense is to be a
   significant factor at trial, the State must, at a minimum, assure
   the defendant access to a competent psychiatrist who will conduct
   an appropriate examination and assist in evaluation, preparation,
   and presentation of the defense.


Id. See also Bartol, supra note 8, at 85.

(222.) South Dakota strictly limits what non-attorneys can do by clearly defining what lawyers and legal assistants are allowed to do. S.D.C.L. [section] 16-18-1 (requiring a law license and good bar standing to "engage in any manner in the practice of law in the State of South Dakota....") (2004); S.D.C.L [section] 1618-34 (discussing limits on and qualifications of legal assistants).

(223.) See Aleccia, supra note 64.

(224.) See Julie Pace, Obama Says Law School Should Be 2 Years, Not 3, DENVER POST, Aug. 23, 2013, http://www.denverpost.com/movies/ci_23926996/obama-says-law-school-should-be-2-years (discussing President Obama's view that law students would be better served to have only two years of coursework and a third year of a structured internship).

(225.) Primary Care Report, supra note 46, at 9.

(226.) Id. at 9-10.

(227.) Doom, supra note 106 (discussing medical students); Bronner, supra note 12 (discussing lawyers).

(228.) See, e.g., Doom, supra note 106 (discussing FARM participant David Kapperman, who is from a small town and hopes to use the FARM program to become acquainted with rural medicine so he can ultimately practice in a rural community).

(229.) Ahlin, supra note 5 ("Nebraska and Iowa each embraced clerkship programs to connect law students with rural practitioners seeking to hire. ... A similar program is planned for North Dakota.").

(230.) Burleson, supra note 5 (quoting University of North Dakota Law School Dean Kathryn R.L. Rand).

(231.) Bassett, supra note 17, at 278 ("Our society's urban focus both overshadows and marginalizes rural dwellers. Indeed, the very notion of 'success' purveys an urban image.").

(232.) See Pruitt & Showman, supra note 31, at 477. ("We posit that Project Rural Practice may succeed in alleviating the rural lawyer shortage in South Dakota because the attorney participants will likely be University of South Dakota law graduates. Many will be familiar with small-town life, and some will hail from the counties targeted or from nearby counties.").

(233.) Jennifer Smith, Law 2014: Paring Back at U.S. Law Schools Continues, Jan. 2, 2014, WALL Street Journal, http://blogs.wsj.eom/law/2014/01/02/law-2014-paring-back-at-u-s-law-schoolscontinues/ ("For example, [Leo Martinez, professor at University of blastings College of Law] said, law schools like those at the University of North Dakota and the University of Kentucky, which supply lawyers to smaller towns and firms in their regions, have been doing quite well placing graduates.").

(234.) Gilbertson, supra note 5, at 442 (noting how new rural attorneys are most likely to from USD as long as "students are aware of this opportunity for a successful rural practice.").

(235.) Healthcare Workforce Update, supra note 136, at 6.

(236.) Id. at 3.

(237.) Supreme Court Chief Justice David Gilbertson has led the charge with the support of the South Dakota Bar Association and the South Dakota Association of County Commissioners. Grosz, supra note 3.

(238.) Silkenat will serve as the president of the ABA from August 2013 to August 2014. James Podgers, Let the Whirlwind Begin: Incoming ABA President James Silkenat Puts a Job Corps for New Lawyers at the Top of His Agenda, 99 A.B.A. J. 63 (Aug. 2013), available at http://www.abajoumal.com/magazine/article/incoming_aba_presidentjames_silkenat_puts_ajob_corps _for_new_lawyers_at_t/.

(239.) Id. A task force has been created to work on the initiative and is headed by Allan J. Tanenbaum from Equicorp Partners in Atlanta, Chief Judge Eric T. Washington of the District of Columbia Court of Appeals, and Patricia D. White, dean at the University of Miami School of Law. Id. at 65. Notably absent are rural voices.

(240.) Silkenat, supra, note 13.

(241.) Podgers, supra note 238, at 63.

(242.) Id.

(243.) Id.

(244.) See id. In listing current programs, Silkenat discusses programs in urban areas which place new lawyers in public sector and public interest jobs. Id. (discussing a job corps at the University of Miami School of Law).

(245.) See Bronner, supra note 12.

(246.) Kenneth J. Goldsmith, Remarks at the University of South Dakota Law Review Rural Practice Symposium (Mar. 21, 2014).

(247.) William Peacock, ABA Discussing Legal Job Corps; But Is It More Than Talk?, FindLaw BLOG (Sept. 17, 2013, 11:57 AM), http://blogs.findlaw.com/greedy_associates/2013/09/aba-discussinglegal-access-job- corps-but-is-it-more-than-talk.html (discussing funding issues for Silkenat's proposal).

(248.) See, e.g., Grosz, supra note 3 (discussing funding troubles for Project Rural Practice in Douglas County).

(249.) Id.

(250.) For example, the Young Lawyers Section of the South Dakota Bar Association has decided to stay involved with Project Rural Practice. Young Lawyers Section: Minutes of the Board of Directors, in State Bar of South Dakota Newsletter 36, 37 (Oct. 2013).

(251.) Grosz, supra note 3. The lawyer is a South Dakota native and a graduate of the University of Minnesota Law School. Ahlin, supra note 5.

(252.) Grosz, supra note 3; Ahlin, supra note 5.

(253.) Grosz, supra note 3.

(254.) Id.

(255.) Id. (quoting Dave Lambert, facilitator for the Corsica Development Corporation).

(256.) Id.

(257.) Id. (quoting Douglas County Commissioner Sue Denning).

(258.) Id.

(259.) Ahlin, supra note 5.

(260.) Wishek JDA Seeks Attorney for Wishek (Nov. 12, 2013), http://www.wishek-nd.com/whywishek/2013/11/12/wishek-jda- seeks-attomey-for-wishek.html.

(261.) Ahlin, supra note 5.

(262.) Wishek JDA Seeks Attorney for Wishek, supra note 260.

(263.) Ahlin, supra note 5.

(264.) Id.

(265.) Oversight Committee, supra note 75, at 7. The center assists with patient care and in 2013 held three live events, two webinars, nine published articles, three whitepapers, and thirty three legal briefs, and "[i]nitial programming has focused on financial services (i.e., contracts and employment agreements, medical school loans, etc.)." Id.

(266.) Id at 9.

(267.) See Project Rural Practice, STATE Bar OF S.D., http://www.sdrurallawyer.com/ ((last visited May 21, 2014). See also Pruitt & Showman, supra note 31, at 504-07. (discussing the use of technology in the provision of legal services).

(268.) Bassett, supra note 17, at 340-41; see also Burleson, supra note 5 (discussing North Dakota's plan for a formal mentoring program for new rural attorneys). While the results have not been quantified, the South Dakota State Bar, under the leadership of two rural practitioners Bob Morris and Sarah Sharp Theophilus, implemented a mentorship program for young attorneys in 2010 called the Hagemann-Morris Mentorship Coin Program. See Kim Lee, Minting a Tradition: Young Lawyer Mentorship Coin Program Takes Off, S.D. LAWYER (Fall 2010), available at http://www.usd.edu/law/upload/South-Dakotan-Lawyer.pdf.

(269.) Hostetter & Felsen, supra note 168, at 319.

(270.) Id. at 324.

(271.) Kathryn Rand, dean of the University of North Dakota School of Law, has already taken this theory to heart: "When [a reporter], asked Dean Kathryn Rand why anyone would want to be a lawyer, she replied it is a noble profession. And it's centered on service and the obligation to ensure a fair and just society." Marilyn Hagerty, N.D. Needs Lawyers--A 'Noble Profession', GRAND FORKS HERALD, Mar. 16, 2014, C3.

(272.) For a personal narrative perspective on the decision many law students make to forgo their stated goals of public interest and go to big-law, see RICHARD D. KAHLENBERG, BROKEN CONTRACT: A Memoir of Harvard Law School 5 (1999) ("I entered [law school] committed to public-interest law, but after three years I came within one day of joining the vast majority of my classmates in practicing law at a large corporate firm, a career which I, along with most of them, would find lucrative, prestigious, challenging, and ultimately unsatisfying."). Although not a solution I would personally endorse, some in the legal profession wish to cut the third year of law school in order to decrease the costs, and thus the burden of student loan debt. See, e.g., Daniel B. Rodriguez & Samuel Estreicher, Make Law Schools Earn a Third Year, N.Y. TIMES, Jan. 17, 2013, http://www.nytimes.com/2013/01/18/opinion/practicing-law-should-not-mean-living-inbankruptcy.html?_r=0 (discussing the New York Bar Association potentially removing the requirement of a third-year of law school before allowing law students to take the state bar exam); Pace, supra note 224 (discussing President Obama's announcement advocating for two years of law school coursework and a third year internship). Medical schools have considered decreasing medical school from four years to three years for family practice physicians with the idea of getting primary care physicians into communities earlier and with less debt. John Walker, S.D. May Condense Medical School For Some, USA TODAY, Feb. 12, 2013, http://www.usatoday.com/story/news/nation/2013/02/12/south-dakotashorter-medical- school/1914439/.

(273.) The loan repayment system in South Dakota is robust, since its institution in 1997, twenty-three physicians have completed their commitment and fourteen of those are still practicing in their placement community. Oversight Committee, supra note 75, at 13.

(274.) South Dakota has the John R. Justice Student Loan Repayment Program, currently in its fourth year, which provides loan repayment for prosecutors and public defenders. The program is federally funded and is meant to incentivize prosecutors and public defenders to remain in public service. In order to qualify, attorneys must sign a three-year service agreement. Loan Repayment Grants Targeted for Prosecutors, Public Defenders, YANKTON DAILY PRESS & DAKOTAN, Mar. 21, 2014, http://www.yankton.net/community/article_026d0cd0-b177-11e3-b18d-0019bb2963f4.html.

(275.) Peacock, supra note 247 ("The population density in rural areas of the Midwest, such as South Dakota, make lucrative legal practice nearly impossible. One would have to rotate through scattered offices or operate like the Lincoln Lawyer to meet the needs of rural clients and to appear in rural courthouses.").

(276.) Gilbertson, supra note 5, at 441. ("Attorneys who engage in a rural practice say there is more than sufficient legal work needed to be done. Besides the normal demand for civil and criminal legal services, Professor Michael McCurry, the State Demographer for South Dakota, told me that with the rapid increase in farmland prices, and the aging of a significant portion of its population, South Dakota is on the verge of the largest transfer of wealth in its history. Planning for and the execution of this transfer will require legal services from rural attorneys."). A number of articles about Project Rural Practice have focused on retiring rural lawyers who have had very successful rural practices. For one such article discussing a South Dakota attorney, see Bronner, supra note 12. For an article profiling a Minnesota lawyer, see Nancy Straw, Finding Big Success in a Small Town, The Daily Yonder, Mar. 24, 2014, http://www.dailyyonder.com/minn-profiIe-big-success-small-town/2014/02/14/7222 ("Dick believes that practicing law in Fergus Falls has been helpful in his career, even while some may think success cannot come without being in a large urban setting.").

(277.) Evenson, supra note 31.

(278.) Primary Care Report, supra note 46, at 4 (discussing medical professionals); Bronner, supra note 12 (discussing legal professionals).

(279.) Primary Care Report, supra note 46, at 14.

HANNAH ALSGAARD ([dagger])

([dagger]) B.A., University of Kentucky 2009; J.D., University of California, Berkeley, School of Law 2012. Thanks are due to Professor Lisa Pruitt for her suggestions and encouragement on this topic as well as Kelsea Kenzy Sutton and the rest of the South Dakota Law Review team for their hard work and helpful suggestions.
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Title Annotation:Project Rural Practice symposium
Author:Alsgaard, Hannah
Publication:South Dakota Law Review
Date:Sep 22, 2014
Words:16506
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