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3. Independent Contractors

Interns and Externs Continued
Independent contractors provide a service for a specific reason or on a limited basis. The length
of the service, the scope of work, compensation, confidentiality, and other terms are governed by
Judicial externships provide law students an opportunity for practical experience. Instead of payment, contract. They may also be referred to as “owner-consultant agreements” or “professional services
students earn academic credit. Typically, an extern earns academic credit according to the number agreements.” If the tribal court signs contracts with pro tem judges, public defenders, or other
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of hours worked. For example, one credit hour could require 50 hours of work during the semester. consultants, then it may have the option to hire a judicial law clerk as an independent contractor.
Externships usually have a classroom component that requires one or more legal writing projects.
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Independent contractors are different from employees in several important ways:
Many law schools impose limits on the use of students. They may require that a bar-licensed attorney
supervise an extern or intern, which is a problem for non-licensed tribal judges. However, some law ᆤ They may not have access to the employer’s resources or records in the same manner as
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schools make exceptions in these situations. 39
a regular employee;
Internships are different from externships. These positions can either be paid or unpaid, and the
student does not earn academic credit. Interns can work during the school year and summer. If an ᆤ They are not eligible for overtime, paid time off, insurance, or other fringe benefits; and
intern is volunteering, then their schedule can be flexible. Internships can be a convenient way to
set up a judicial law clerkship when working with a law school. The law school helps with the hiring ᆤ They are responsible for paying taxes on their earnings.
process and takes that burden off the tribal court. For example, Seattle University Law School’s Center Federal and state employment and taxing agencies apply certain factors to determine whether a
for Indian Law and Policy offers an internship for the Tulalip Tribal Court. The Center selects the contractor is an employee or an independent contractor. If a taxing agency determines that a person
interns to work for the Tribal Court. This paid internship is funded by the Tribes. This collaboration
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is misclassified as an independent contractor rather than an employee, then the employer must
allows the tribal court to employ a continuous rotation of temporary student clerks.
withhold taxes and comply with applicable labor laws governing wages, earnings, and leave.
Individual tribes, grant agencies, and foundations may require specific steps before the court can
engage an independent contractor. Examples are:

ᆤ Approval by legal counsel, accountant, or administrative official;

ᆤ Standard provisions in the scope of work;

ᆤ Minimum number of bids from qualified candidates;

ᆤ Native American or Alaska Native preference;

ᆤ Advertising requirements;

ᆤ Funding restrictions; and

ᆤ Standard language such as disclaimers about the selection process.

36 Id.
37 Id. at 24.
38 Case & Tompkins, supra note 1, at 23.
39 “At the University of Colorado Law School, tribal judges are qualified as externship supervisors, regardless of
whether they are licensed or not.” Id.
40 Interview with Brooke Pinkham, Staff Dir., Center for Indian Law and Policy (July 2, 2021).
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