Peter d'Errico: Highly redacted version of what's on Peter's website:
In 1968, there were no car dealers in Navajoland. Navajos had to go to Farmington, NM, where they were treated as second-class citizens, victims of
contracts that called for a “balloon payment” at the end of a long series of smaller monthly payments. Dealers sold and repossessed the same cars over and over. We knew balloon
payments had been successfully challenged in other jurisdictions as “unconscionable” under the UCC. We thought we had a chance to win that argument here.
Many of our clients spoke only Navajo —and, indeed, this was one factor we thought might weigh as a special element of inequity in the face of greedy car dealers. With the help of
translators, I worked to build a set of plaintiffs who understood and supported what we were trying to do.
Insert. Contrast the DNA memories here with recent devastation caused by covid. Here's one, very sad
article
And here: another.
Around this same time, an unrelated and obscure event was occurring in the legal world. The NM Bar Ethics Committee took up the question whether the Navajo Legal Services Program was engaged in unethical advertising.
A complaint from a member of the bar asserted that the program’s Navajo name, which adorned our stationery, constituted advertising: “lawyers who work for the economic revitalization of the people.” The Committee decided this was unethical.
Meanwhile, the defendants in our car dealer case moved to dismiss, including on the grounds that our office was engaged in unethical practice. I knew legal services programs had been
attacked in other jurisdictions, though not successfully, under old common law doctrines of “champerty and maintenance,” which prohibit third-party financing of a lawsuit. When the day
came that we were in court, I heard the accusation of unethical practice and began to puzzle at what was being said. The defendant’s lawyer was saying something about the stationery on which our court papers were filed. After several moments of bewilderment, I realized that he was referring to the Bar Ethics Committee decision and saying that our lawsuit should be dismissed because it was filed on unethical stationery!
It's hard to explain this to a client, let alone one for whom the whole Anglo legal process appears as an invasion from another world. Fortunately, another event had occurred in the legal
world — the Navajo Nation had enacted a law banning dealers from simply finding and towing away cars. Now a Tribal Court order to allow repossession was required. We still nurtured
the idea of a class action suit, but now we had an accessible individual remedy in Tribal Court: challenging these contracts in a Navajo court. This could be effective only to the
1970: R to L: Dan Press far right; 3rd from right Sally's husband with brand new daughter Sarah in back-carrier; then Sally. (Tom Galbraith YLS '69 is in cowboy
hat).
extent it could be enforced. At first, car dealers continued their old ways and clients were not aware of the new law; by the time a client found out, the car was back on the lot in Farmington.
One afternoon, one of my favorite clients, a man whose energy and enthusiasm for life were palpable, arrived in the office, out of breath and in agitation. He had been riding into Shiprock
with his brother and seen a tow truck with his pickup hitched behind. He told his brother to turn around and give chase, until they came abreast of the truck and forced it to stop. He pulled
out a gun and ordered the driver to unhitch the pickup. He then drove his own pickup to my office. I was elated: it gave us a chance to enforce the new law.
Within an hour, I got a call from the car dealer himself, spluttering, “Your guy pulled a gun on my guy.” He demanded some sort of satisfaction. I, relying on attorney-client privilege, said
I couldn't say what happened, but assured him that if his agent again attempted to repossess any vehicle without an order from Tribal Court, we would take steps to impound his tow truck.
I never heard of another attempt, and I think of this as the case we won on that issue.
More Peter here.
& here.
Yet again: here.
Dan Press: DNA stands for three Navajo words that roughly translate as “Attorneys who bring economic benefit to the People.” It
is also a play on words because when said quickly, DNA sounds like
Dine, the Navajo word for themselves, the People. The program had been started just a year before and was the first time individual Navajos had access to attorneys who did not
require retainers to talk to them As a result, our offices saw clients eight hours a day five days a week, bringing a range of legal problems, some of which went back years for which the
clients had been saving documents in shoe boxes in the hope that some day they would have a resource to help them.
Going to work for DNA turned out to be a career-changing and a life-style changing event for most of us from our Class. Four out of five of us went from DNA to careers either practicing
or teaching Indian law. In turn, we had a significant impact on Indian law and tribal communities by helping tribes create new institutional structures that strengthened tribal sovereignty and
promoted education and employment opportunities. Mike assisted the first Native American community to take over control of the school in its community that was being run
(poorly) by DOI's Bureau of Indian Affairs. Using that first school as a model, after leaving DNA, he then helped communities around the country to take over
control of their schools and integrate tribal traditions and history into the curriculum. Today there are 130 tribally-controlled schools and a national association that Mike represented for many years.
Sally also broke new ground after she left DNA and settled in Albuquerque. DNA was not permitted to take fee-generating cases, but the Reservation is so remote, the size of West
Virginia, that it is difficult for individual Navajos to get to the border towns to find an attorney in private practices and many of those attorneys were not eager to represent Navajo even on
fee-generating matters. So, Sally and three colleagues developed a unique solution. They purchased a bus, retrofitted it as a mobile office, and went from Navajo community to
community, providing legal representation on fee-generating cases that had never before been available.
While at DNA, I helped to create a program called the Tribal Employment Rights Office (TERO) program in which tribes use their sovereign authority to require all employers coming
on the reservation to give preference in hiring and promotion to Native Americans. Prior to the TERO program, construction companies would come on a reservation to build schools
houses, hospitals and highways for the tribal members but would bring their own non-Indian crews so that, notwithstanding the 30 % or higher unemployment rate in Native American
communities, the workforce was usually 90% non-Indian and 10% Native American. The TERO program has reversed those percentages. Today over 300 tribes and Alaska Native villages
have TERO programs. I continued to work to develop TEROs after I moved to Washington DC and have represented the national TERO organization for 43 years.
Today I am pro bono counsel for a Navajo organization that is working to address historical and childhood trauma, which have been shown by scientists to be a major underlying
cause of so many of the problems that plague reservations, including suicide, substance abuse, domestic violence, high school dropout rates, obesity and diabetes. The organization turns to
both trauma-informed approaches developed by western medicine and traditional Navajo practices for addressing trauma. To complete the circle, one of the board members of this
organization is Peterson Zah, who became the Director of DNA when we were there and who went on to serve two terms as president of the Navajo Nation.
Continuation of Dan's account here.
And now a current (11/2021) photo of Dan and friends.
And here's a link to the article that tells what he is up to
today.
Rich Reichbart: My experience on the Navajo reservation influenced my life in ways that I never would have anticipated. The
experience, combined with my previous work as a civil rights worker for Martin Luther King in Georgia, prior to law school, confirmed my fascination both with culture and with a desire for
fairness in society. Although I briefly continued as a lawyer after leaving the reservation, successfully defending Native Americans for “trespass” in an important sit-in case at the BIA
office in Littleton, Colorado (by some referred to as the “Littleton 9” case), I ultimately took an entirely different path in which I continued with my interest in culture. I became a psychologist
and a psychoanalyst; and I studied and wrote about parapsychology as well.
But getting back to how I ended up on the reservation: one of my roommates for my third year of law school, in a beachfront house in North Haven,was Mike Gross. He had worked previously in Arizona as a law clerk for a firm with an affiliation with DNA and now had a job at DNA Legal Services on the Navajo Reservation, a job which would be a draft deferment. He vouched for me and I ended up getting a Reginald Heber Smith Fellowship from Penn Law School to work at DNA. I am forever grateful to him for this opportunity and for in effect saving me from the draft.
I did arrive on the reservation as Sally mentions with a French girl friend “Chantal” whom I had picked up when she was hitchhiking with a friend across country. Sally and Dick graciously put me up at their house in Window Rock, and then subsequently I moved to a house in a more isolated town near there, Fort Defiance. I liked living on a dirt road (now without the girlfriend), the smell of pinon burning from neighboring hogans and sometimes a bell tinkling from the goats and sheep that wandered near. Down that road was a Vista couple. Otto Laula and his wife, living in a hogan.
My “expertise” on the reservation was supposedly in trading posts. These were fascinating, creative and essential institutions in many ways (there were over a hundred in all) but also scary because they were part of a colonial system that controlled the Navajos, a perspective you will not get if you visit Hubbell Trading Post in Ganado, Arizona which caters to tourists. As conduits to the outside world, the trader sold food and supplies to the Navajos in tremendously isolated areas, took their pawn (usually beautiful jewelry) to fulfil their debts to him, collected the wool from their sheep, assisted them in hiring by the railroad, was the post office, encouraged their making of blanket designs (the particular designs reflect the taste of each trader at the location of his store) and marketed the rugs, was their translator of government mail, and took the checks they might get from government programs. Needless to say, this unequal arrangement could lend itself to inequities, where Navajos seemed to pay endlessly for pawned items. Subsequent to my time on the reservation, DNA brought an important suit against the traders.
Two of my closest Navajo friends were Lorene Bennett and Gloria Emerson. Lorene was my girlfriend, until she broke my heart and ended up with Bruce Ferguson, a hippie doctor just graduated from Stanford. They ended up living in Bruce’s home town Albuquerque and ultimately Lorene became a celebrated justice of the Navajo Tribal Court. She recently passed away from covid. She was a wonderful soul. Gloria became a very talented artist with a gallery in Shiprock (we own one of her paintings).
I have written about the Navajos and Native Americans in fiction and in fact. In fiction, there are two stories in my book Curious Stories of Diverse Places (IPBooks, 2019) one of which is “Yah-tah-hey, John Yazzie or the Richest Indian in Fort Defiance”. The other is “The Power of Berry Soup” -- a long factually based tale of Native American history beginning with the encounter between Wynkoop and Black Kettle in 1864 at Camp Weld near Denver and ending with an excerpt from the transcript of the sit-in case in Littleton, Colorado where I was the attorney along with Harris Sherman, Esq. The “making of berry soup” actually played a role in this trial (you can read it to understand what I mean). The underlying issue for which the young Native Americans sat-in (Indian preference in hiring at the BIA) ultimately was taken by Harris to the U.S. Supreme Court where he won(Morton v. Macari, 417 U.S. 535). There is also a story concerning the Sami which is based on my reindeer trekking in Norway above the Artic Circle and was influenced by my Navajo experience.
In reality as opposed to fiction, in my book “The Paranormal Surrounds Us” (McFarland, 2019) I write from a psychoanalytic and parapsychological perspective about Navajo medicine in “The Navajo Hand Trembler: Multiple Roles of the Psychic in Traditional Navajo Society” based on research and my experiences with a number of Navajos. In addition, there is a second chapter entitled “Western Law and Parapsychology” in which I allude to the 1982 change in Navajo tribal law (it was called “going back to the future”) in which they in effect recognized the legal existence of parapsychological phenomena, most specifically witchcraft.
Law has been far behind me now. I have been a practicing psychoanalyst for thirty years treating children and adults in a small suburban town, Ridgewood, NJ, near New York City. I continue with an abiding interest in culture, producing two videos that arose out of conferences at my psychoanalytic institute “Black Psychoanalysts Speak” and “Psychoanalysis in El Barrio”. I remain active as a psychoanalyst and am President-Elect of my institute.
Of my experiences on the reservation: I will never forget the stunning beauty of the place, the Navajos and their way of life, as well as my experiences with Sally, Dick, Dan Press (with
whom I visited Grand Canyon), and Mike, and of course with the impossible Ted Mitchell, who actually made it all possible.
More Rich here.
Mike Gross: My legal career started with a punch. It was late July 1968.
Along with four other classmates, I had just arrived in Window Rock, AZ, headquarters of DNA Legal
Services, a poverty war OEO-funded program for the Navajo. Our brash and controversial director,Ted Mitchell, was a flamboyant, smart-as-a-whip Harvard-trained lawyer and
ex-Mormon who had developed an intense dislike for the Tribe’s corrupt leader, Raymond Nakai, and the toady Tribal Council which he led. Mitchell had dispatched me to Phoenix to file
a brief in a pending case in Federal Court. So, I missed a meeting of the Council earlier that day. I returned to Window Rock in the evening , reporting back to Mitchell about my mission.
He told me there'd been an incident. An Assistant Interior Dept. Solicitor had been describing a controversial new Indian civil rights act which had been passed by Congress to
provide remedies for violations of civil rights by tribal governments. Mrs. Wauneka, a revered member of the tribal council and recipient of a Congressional Medal of Honor for her work
in Navajo health care, disliked Nakai but disliked Mitchell even more. She disapproved of the brash young anglo attorney’s crusade against tribal officials for violating the civil rights of
Navajo people. The feud with Mitchell had been the hot topic on the Navajo Reservation for weeks.
Mrs. Wauneka had asked the solicitor a question, “We Navajo have a right under our Treaty of 1868 with the United States to exclude bad white people from the Reservation. Does
this new law take away that right?” According to Mitchell, sitting in the Council Chamber, the solicitor, obviously informed about the sensitive issues presented by the new law, evaded
her question, asking instead, “Do you have anyone particularly in mind?” Now, the Mitchell issue had raged for weeks. It was the main topic of the whole summer. So, when the grand
lady of the Nation quickly answered the solicitor’s question with, “No”, the place erupted in laughter. Mitchell’s guffaw, he admitted, was the loudest. Mrs. Wauneka glowered at Mitchell,
but the meeting resumed without further incident.
Home for DNA Tuba City lawyers, WPA project built by Hopis..
The next morning Mitchell suggested that he and I go back to the Council Chamber for the continuation of the discussion about the new law. The two of us were sitting in the back of
the chamber facing the stage. Mitchell pointed out Mrs. Wauneka about twenty yards from us sitting on the middle aisle in the very first row facing the stage. She had not seen us. Until,
that is, someone walked down the center aisle and whispered in her ear. She immediately rose on her haunches, looked back at us, got up from her chair and started walking towards us.
“Oh, oh.” Mitchell whispered, “She’s coming for me.”
Sure enough, the towering, imposing matriarch stopped directly in front of Ted and me, both of us still seated on folding chairs. Her six foot tall frame suddenly cast a shadow over
us. Ted started to rise saying, “I think we’ll go now, Mrs. Wauneka.” But before he could move, she erupted. “You gonna laugh at me again, huh!!!?, she screamed and began punching
and clawing at his face, neck and shoulder as hard as she could. By then the place had erupted into a riot. We were trapped because the row we'd come down was blocked by doors
now fixed there to keep them open. I got up and managed someway to get around Mrs. Wauneka in the row from which she was attacking Ted and make my way, with Ted following, back
to the door we'd come in. By now the Chamber was in full riot mode. Screaming, yelling, bedlam, aisles filled with Council members, as we somehow threaded our escape route.
Somehow we managed to get out the door we had entered and quickly hopped into Ted’s pickup. Fortunately, it was parked just outside the door. A few days later Mitchell was
expelled from the reservation by the tribe’s Advisory Committee for having started the riot in the Council chamber! A few months later I was a witness in Federal Court testifying to Mrs.
Wauneka’s assault on Mitchell. He and our Board won the lawsuit, the first filed under the very law that was being discussed by the Council. Mrs. Wauneka finally got her question
answered. The court ruled that the Nation had violated the Indian Civil Rights Act. Mitchell was immediately reinstated. I’m now writing up this and other adventures
along the Indian law trail I pursued for the rest of my career.
Sally Barlow: I could hardly believe my eyes when I saw that index card tacked on the Employment bulletin board at the law school. It offered jobs in poverty law on an Indian reservation. Two strong interests of mine converged right there.
First, when I was 16 in 1958, I spent a mind-opening summer in a Quaker Work Camp on the Ft. Berthold Indian Reservation in North Dakota, where we helped tribal members build an earth lodge to use as a community center in Newtown. It was a new town because the U.S. had built the Garrison Dam on the Missouri River thereby flooding the lands where the “Three Affiliated Tribes” (Mandan, Arikara and Hidatsa) had recently lived.
Second, years later, having fallen into law school after being rejected by Yale’s Master of Arts in Teaching Program and auditing some law classes as the unemployed wife of law student Dick Barlow, I, like Bob Sable, found a great mentor in Ed Sparer. I clerked at Mobilization for Youth’s Legal Unit on Manhattan’s Lower East Side (my desk was a piece of plywood on a bathtub) and after we moved to Brooklyn in 1966 for Dick’s Wall Street law job, I completed my studies by traveling on the decrepit New Haven RR (remember the broken windows half-filled with swaying water?), couch-surfing at the apartments of Liza Molodovsky and DG and Harriet Martin, and doing several research projects that Ed turned me onto and Steve Duke oversaw. They included an analysis for the ACLU of the stated predicates for NYPD’s drug arrests before (“I searched defendant and found the glassine envelope”) and after Mapp v. Ohio (“defendant threw down the glassine envelope as I approached”) and a study of welfare “Fair Hearings” held in NYC during the pendency of the litigation that resulted in the 1970 U.S. Supreme Court decision Goldberg v. Kelly.
Dick applied for the one job opening at Dinebeiina Nahiilna Be Agaditahe, Inc., literally, “Lawyers who contribute to the economic revitalization of the Navajo
people”, the legal services program on the Navajo Reservation founded in 1967. I figured if he got the job, I could probably wangle a position there somehow. We flew to Phoenix to meet
with Ted Mitchell and others at a legal conference and then drove to Window Rock, stopping at night on the dirt road from Lupton heading north from I-40 where we turned off the headlights
and were awestruck by the stars. Right then, Dick, a life-long resident of Queens, said he didn’t think he could do it. When he finally had to make the decision, it was April; Martin Luther
King’s assassination (and it’s embarrassing to say, my tears) changed his mind. We bought an International Harvester Travelall, a full-sized SUV with an extra gas can, and drove west
that summer for the two-year commitment, He was to head the Ft. Defiance Office in Window Rock (AZ), 26 miles from the Gallup (NM) bordertown, and I was to be a staff attorney.
Dick’s first case involved the new Navajo Tribal law Peter mentions that required a tribal court order to permit the repossession of a vehicle on the reservation. A man rushed into our office saying that his wife had told him that his pickup had just been repossessed without a court order in the center of the reservation 45 minutes away, and that it was headed to Gurley Motors in Gallup via Window Rock. Dick alerted the tribal police who jailed the driver and impounded the tow truck before it reached New Mexico, the reservation boundary. The next day Pat Gurley and his Gallup attorney came to our office and threatened to take Dick to court and have him jailed and his car repossessed, but after consulting privately outside they made a deal: the tow truck and driver would be released and the client’s truck returned fully paid off. Our introduction to enforcing tribal law in the Wild West. [This event and a story about Dan Press and his horse is told in Lucy Moore’s book Into the Canyon; Seven Years in Navajo Country, pp. 26-28; Lucy was the wife of the DNA attorney in Chinle, AZ.]
Clients soon inundated the Ft. Defiance Office, which served one of the five BIA-delineated regions of the reservation. Navajo Tribal Court Advocates practiced in the tribal courts, and they and our wonderful support staff interpreted for us and did their best to educate us do-gooders in Navajo ways and proper behavior while we took on the bordertown merchants and on-reservation traders, including car dealers and pawnbrokers.
A few memories. Attending my first seder at Dan Press’ home. My representation of a Hopi witch, who wore a fur piece with one fox head gripping the tail of the other fox, causing consternation among our Navajo coworkers. Failing the weekly course on Navajo language, evenings at the UNM Gallup branch. Attending a Fire Dance one night. Hearing chomping outside our bedroom window & seeing horses eating our nasturtiums. Hosting Rich Reichbart’s French girlfriend for a long time until he found a hogan where they could live. Finishing work one Friday night in March of 1970 and being rushed to the Rehoboth Mission Hospital east of Gallup to deliver Sarah Brooks Barlow the next morning, the only baby in the nursery with no hair. Taking her to the office in a portable bassinette where Navajo friends helped care for her. Carrying her in the bassinette to Hopi dances where the clowns pretended (I think) that she was baby Jesus. Finally, I had a rude awakening when I wrote the Holbrook AZ Department of Welfare Office soon after the U.S. Supreme Court’s Goldberg v. Kelly decision to inform them they were now constitutionally required to provide a Fair Hearing for my client before terminating her family’s benefits and received the response that they saw no need to apply that decision to their operations.
Martha Ward (now Martha Blue) in the far western Tuba City Office was the only other female attorney when I arrived at DNA. We worked to expand the awareness of the availability of welfare benefits on the reservation, both state-administered Aid to Families with Dependent Children and the BIA General Assistance Program. After moving on to other legal services programs, we worked with a Navajo illustrator to develop a pamphlet, published by the Native American Rights Fund, on the BIA benefits and wrote an article on the BIA program published in 51 N. D. Law Review 31 (1974).
More Sally here.
1970: Sally Barlow drinking from mug (Moenave, near Tuba City, AZ).
John Slow Turtle Peters (1930-97), Mashpee Wampanoag Medicine Man, Exec. Dir. MA
Commission on Indian Affairs. "An inspiration for my work and life." ~Peter
article & book review .Covid and
Navajo. 10/26/2020
McGIRT DECISION
“On the far end of the Trail of Tears was a promise.” -- Justice Gorsuch
At least one of our classmates, Mel Masuda, has been involved with this branch of Native America, and he now gives us a full introduction to this subject. As
background, Mel noted that Congress "122 years after the Republic of Hawaii was annexed into the U.S.A. as a coaling station (at Pearl Harbor) to-and-from the newly acquired Philippines -- still refuses to declare
Native Hawaiians as a Native tribe. This is in contrast to the Native Americans on the Continent, including the Navajo of Window Rock and also the Aleuts, Intuits, and Eskimos of
Alaska." Mel's piece appears here .
"The legends in this volume were recorded, transcribed, reviewed, and edited by Wilson Wewa and James Gardner
[YLS 68]. Each legend was recorded, then read and edited out
loud, to respect the creativity, warmth, and flow of Paiute storytelling. The stories selected for inclusion include familiar characters from native legends, such as Coyote, as well as
intriguing characters unique to the Northern Paiute, such as the creature embodied in the Smith Rock pinnacle, now known as Monkey Face, but known to the Paiutes in Central Oregon as
Nuwuzoho the Cannibal."
We've also found, from various projects it has already spawned, that Jim is working on a new book about the Paiute, Oregon Apocalypse.
1870 3 Paiute youths Wovoka Southern Paiute
Rich Reichbart has published this book, which he describes as "a fiction version of some of my Native American experiences, on the Navajo Reservation and subsequently in
Denver." He also promises more on this for this page.
Not all involvements of YLS68 with the affairs of Native Americans had to do with courts and codes. In propagating throughout the 50 state governments a unified network of data systems
utilizing a shared methodology created to establish scientifically which species were in fact endangered, and which were not, and where exactly the endangered ones were
located -- so that an organization like The Nature Conservancy or a state agency could buy and protect the land -- Hardy discovered the possibility of doing a program
with the Navajo Nation. They had their own governing structure and agencies that were very state-like. The AZ NHP had begun in 1979; it was now 1984. "I flew to Window Rock to
settle on terms with a guy in the Forestry Dept. He was not himself a Navajo, but we settled on the fact that
Donna House, a botanist who was Navajo, should be the coordinator.
Like all the heritage programs we started, it still exists and is permanent."
In the Summer 2020 Class Notes, Jim Goetz writes: “although I’m not going full bore. I just argued in Federal Court in Missoula, Montana an important summary judgment motion
regarding lands/roads on the Flathead Indian Reservation. I have represented for many years the Confederated Salish & Kootenai Tribes.”
And just discovered in Bill Benjamin's page in the Reunion book: I had "a Reginald Heber Smith Community Lawyer Fellowship in Rosebud, South Dakota. After spending
a winter with the Rosebud Sioux Legal Services, I transferred that title to Colorado Rural Legal Services where I and my wife, Lee, and our two children enjoyed Greeley
and Alamosa for the next 18 months. "
This volume of the Library of America series contains 62 such poems. Emily Dickinson and Herman Melville are among other luminaries whose work appears. About twenty are Ojibwa (Chippewa) poems, and several dozen other tribes are represented.