Yazzie, Robert, Hon.

English

University of Oklahoma College of Law

American Indian Law ReviewVolume 20 | Number 11-1-1995Address to the Ninth Annual Coming Together ofthe Peoples Conference of the Indigenous StudentsAssociation: Where Should Lawyers Be When thePeople Come Together?Robert Yazzie Hon.Follow this and additional works at: https://digitalcommons.law.ou.edu/ailrPart of the Indian and Aboriginal Law CommonsThis Special Feature is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted forinclusion in American Indian Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information,please contact darinfox@ou.edu.Recommended CitationRobert Yazzie Hon., Address to the Ninth Annual Coming Together of the Peoples Conference of the Indigenous Students Association: WhereShould Lawyers Be When the People Come Together?, 20 Am. Indian L. Rev. 301 (1995),https://digitalcommons.law.ou.edu/ailr/vol20/iss1/12ADDRESS TO THE NINTH ANNUAL COMINGTOGETHER OF THE PEOPLES CONFERENCE OFTHE INDIGENOUS LAW STUDENTS ASSOCIATION:WHERE SHOULD LAWYERS BE WHEN THE PEOPLECOME TOGETHER?Hon. Robert Yazzie*It is a pleasure to be with you today. Before I get into my talk, I want totell you a couple of court secrets. First, I use invitations such as this todevelop Navajo Nation court policy. I use the time and effort to get ready fora talk like this to think out where my courts and its people should go. So,today, I'm going to set Navajo Nation court policy on the role of lawyers. Mysecond secret is that I love questions! I find that it is easier to understandsomething when you ask them. I like to get down to the basics; to ask"What's it all about?" That is Navajo legal thinking, where we get to thebottom of things.I ask: "Where should lawyers be when the people come together?" I ask,because that is the theme of this conference. Before I can get to it, I have afew more questions: What is a "lawyer"? Why should Indians becomelawyers? Why did I go to law school, anyway? Why are you going to lawschool? When you're done, how do you fit in your communities - the placewhere "the people come together"? That's plenty to think about!What is a "lawyer"? It is supposed to be someone who serves others;someone who presents a client's case to a court or gives good advice toothers. What is the reality? Before the 1870s, anyone could be a lawyerwithout going to law school. You could "read law" then take and pass the barexamination. We remember Abraham Lincoln as a great president. Peopleforget that before he became president, he was considered to be one ofAmerica's best trial lawyers. He never went to law school. In around 1870,lawyers felt neglected. Most universities considered the law school to be atrade school; something like a school for plumbers or electricians. So, the lawprofessors of the time started upgrading courses and came up with the ideaof law as a "science." They started writing the great hornbooks, like Thayeron Evidence. Professor Thayer of Harvard was one of the "friends of theIndian" who helped make Indian policy - without ever involving Indians, ofcourse. Something else happened at the same time. The legal professionupgraded itself and founded the American Bar Association. The A.B.A.asked, "How can we get better lawyers?" The answer: "higher standards!"What did that mean? First, it meant that now everyone had to go to law* Chief Justice, Navajo Nation. This address was delivered at the University of WisconsinLaw School.Published by University of Oklahoma College of Law Digital Commons, 1995AMERICAN INDIAN LAW REVIEWschool; you couldn't read law any more. It meant that you had to go tocollege before entering law school. It used to be that you went straight fromhigh school into law school. It meant that you had to pass a rigid barexamination. Finally, it meant -and it means- that you have to go to an"American Bar Association-approved" law school to be a lawyer.What does that mean for Indians? Well, in the 19th century, everyone saidthat there had to be "law for Indians." That meant BIA-imposed codes and theCourt of Indian Offenses, with Indian judges. The thinking of the time wasthat they would educate and prepare Indians to assimilate into society. Theyeven encouraged Indians to be lawyers. Who was the first American Indianlawyer? (I know that a Pueblo member was a lawyer in New Mexico underthe Spanish, but that was a long time ago.) The first American Indian lawyerwas Thomas Jefferson McDonald, of the Choctaw Nation of Mississippi. Thehead of the Bureau of Indian Affairs hired McDonald in 1818. After a fewyears, McDonald was sent to study law in Ohio. When BIA head ThomasMcKenney told McDonald of the plan, he was afraid and said, "I am anIndian." McDonald's brother, an army officer, wrote saying he could do oneof two things: "either throw away all that belonged to the white race; or quitbeing an Indian and turn white man." The brother continued in his letter:"The first you can do; the last, it is not in your power to do. The white manhates the Indian, and will never permit him to come into close fellowship withhim."McDonald got his license to practice law in Mississippi and went toWashington in 1824 as part of the Choctaw delegation. He made the Choctawaddress to Congress on February 18, 1825. He told Congress: "Howeverqualified. by education we may be, we are neither permitted to hold offices,nor to give our testimony in courts of justice, although our dearest rights maybe at stake. Can this be a correct policy? Is it just? Is it humane?" Thosewere powerful words, in a time when Indians were not "citizens" and couldnot testify against a white person in court.How did McDonald end up? Torn by the warning his brother gave,McDonald took to drinking and eventually committed suicide. He did notlearn how to combine his Indian ways with his legal training and it tore himapart.Who was the first Indian woman to become a lawyer? It was Lyda BurtonConley of the Wyandotte Nation of Kansas. She became a member of theKansas bar in 1910. Why did she decide to go to law school? In 1844,Conley's mother and three hundred Wyandottes died in a smallpox epidemic.The victims were buried in an Indian cemetery in Huron Park, outside KansasCity. In 1904, Conley and her sister, Lena, learned that the Secretary of theInterior approved removing the Indian cemetery for commercial development.The two sisters decided to act. They went into the cemetery and put signs onthe graves of their relatives which said, "Trespassers Beware!" They built ashack on the cemetery grounds, looking over it, and waited. A magazine302 [Vol. 20https://digitalcommons.law.ou.edu/ailr/vol20/iss1/12SPECIAL FEATURESreported: "They loaded their guns and took up their abode in that city of thedead, and the word went out that the first man to turn a dos over one of thosegraves would either turn another for the Conley sisters, or have some otherperson perform a like service for himself." The papers called the hut "FortConley," and the two sisters held the developers off for years. Lyda alsodecided to arm herself another way. As she sat in the shack with her gun, shestudied law. She decided she would bring a suit against the Secretary of theInterior. Before she became a member of the bar, she filed suit in the U.S.District Court in Topeka, Kansas to enjoin the federal government fromremoving bodies and selling the land. (You can see that graves repatriationand the sanctity of Indian graves has been a legal issue for a long time.)Conley lost and sent a sixty-nine page brief to the U.S. Supreme Court. TheCourt refused to act. The sisters sat in the graveyard for forty years more.Lyda Conley continued to watch over it while taking cases. A friend said ofher law practice, "as a lawyer, she almost starved to death. She wouldn'tprosecute anybody and she wouldn't defend anybody guilty except an Indian.So she didn't have many cases."Paul Harvey recently attended the Navajo Nation inauguration ceremony,and like he says, there is a "rest of the story." Despite Lyda Burton Conley'sefforts to save the graveyard, I understand that today it is a tribal casino! Iwonder what she would think of that?These are two examples of Indian lawyers: One who spoke strongly for hispeople but couldn't handle the conflict. Another who had a specific purposein mind but obviously really didn't like the law. They had their own problemsanswering the question: "What is a lawyer?"It took many years for Indians to get into law school. The academicqualifications and "higher standards" I mentioned made it hard for Indians toget into law school in the first place. It is still hard today. It was not until the1970s that we got programs to help us get into law school and the law schoolsstarted admitting Indians. When we finally got through the law school doors,what did we learn?We've all read Felix S. Cohen's Handbook of Federal Indian Law. Cohenwrote it when he worked for the Interior Department. What did he do whenhe got out of the Interior Department? He started a law firm in Washington,DC that specialized in Indian cases and Indian claims. The Indian ClaimsCommission Act was a piece of termination legislation. It sought to finallyterminate Indian rights to their traditional lands by having Congress pay forthem. What was the fee for representing an Indian nation on a claim? It wasfifteen per cent of the total recovery. Claims were paid at the market valueof the land at the time of taking (that is, often in the 1870s or 80s), minuscredits to the government for things like treaty payments, commodities or beefrations. Fifteen per cent of millions is a lot of money, and many of the Anglolaw firms back East got a lot of money from Indian claims. They also madeNo. 1]Published by University of Oklahoma College of Law Digital Commons, 1995AMERICAN INDIAN LAW REVIEWlarge fees from Indian nations. Those firms were in Indian law for the money,and I want to warn you -as Indians- about that.Why did you go to law school? Is it the money? Is it power? Is it that alaw degree opens doors to get into the statehouse, Congress or a tribalchairmanship? Those goals are good -as far as they go. But they can bedangerous. If the love of money is too strong, you will forget the people. Ifyou want power too much, you will not listen to the people. If you are moreinterested in a big name than humility, you will fail. Too often, people forgetthat humility is a basic Indian value.Why should Indians become lawyers? Many tell me that they want to"serve the people." That is something I agree with wholeheartedly. What dothey learn in law school? The official American Bar Association name forIndian law is "Indian affairs law." It is not "Indian law." That is, it is not thelaw of Indians. It is the law of white people, used to control Indians. Do theyteach traditional law in law school? Are your elders and religious leadersvisiting professors? Do you learn your Indian values in law school so you canput them to work when you get out? Do law school classes prepare you to gohome to serve your communities? I sometimes ask law professors: "Has theAmerican bar forgotten the people?"Law is values. What is a "value"? It's a feeling that people share aboutwhat is right; about what the right thing to do happens to be. Here is one:Think of "law" as a circle. Imagine that in this room, we sit in a circle to talkabout our values; what we feel about things; what we should do. In a circle,there is no beginning and no end. There is no start or finish. A circle isunbroken. In it, no person is above the other - they are all equals. Thetraditional "talking circle" is the p!ace where everyone has a say and when thetalking is done, there is agreement. It is the place of equals where everyoneis equal and part of the whole.That is what I mean when I ask, "Where should lawyers be when thepeople come together?" I mean that very literally. They should be in thecircle. It is made up of the peoples, and that is how they come together.There is a special place for lawyers, to share the knowledge they learned. Ina circle, no one person is better than anyone else. It is where you talk, butyou also listen. Too often lawyers -both Anglo and Indian- think they knoweverything, so they forget how to listen. They listen to know how better toshare their knowledge. A circle is not about money, but about the good of all.It is not about power; it is about community. It is not about pride and holdinghigh office, but about working together. The very act of coming togethermeans that we all work for each other's future and that of our communities.Two of the sub-themes of this conference are: "Where is Indian countrytoday?" -and- "Where will Indian country be in the future?" Today, we arereorganizing. Indian law is split into time periods, and some say we have justended the "period of self-determination." Where are we going? Some say weare now in the "period of self-governance." Perhaps. Others fear that as[Vol. 20https://digitalcommons.law.ou.edu/ailr/vol20/iss1/12SPECIAL FEATURESCongress eliminates social programs and returns the money in state blockgrants, Indians will lose out. That is a legitimate fear.The future depends upon what I do. It will depend upon what you do withyour law degree. We can be fearful or we can have hope. I have hope -andconfidence- that if you remember why you went to law school and what itmeans for an Indian to be a lawyer, we will go on. To me, being a lawyerand a judge means that I know what it means when the peoples cometogether. Many elders close their prayer saying, "All my relations." That tellsus to remember. Navajos often close their prayer saying, "Hozho nahasdlii."That means, "By this, the way we act with each other, we are in goodrelations; we have achieved hozho or the state of being where we act in goodrelations and respect." That is our traditional law, which they don't teach inclass. (At least they didn't teach it when I was in law school.)What is why peoples come together and that is why you are in law school.APPENDIX: SOURCESProfessor Thayer and the "Friends of the Indian": Francis Paul Prucha,Ed., Americanizing the American Indians: Writings by the "Friends of theIndian" 1880-1900 (1978).Thomas Jefferson McDonald: Richard Drinnon, Facing West: TheMetaphysics of Indian Hating & Empire Building 184-85 (1990).Lyda Burton Conley: Karen Berger Morello, The Invisible Bar: TheWoman Lawyer in America: 1638 to the Present 122-25 (1986).No. 11Published by University of Oklahoma College of Law Digital Commons, 1995https://digitalcommons.law.ou.edu/ailr/vol20/iss1/12

Address to the Ninth Annual Coming Together of the Peoples Conference of the Indigenous Students Association: Where Should Lawyers Be When the People Come Together?

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Address to the Ninth Annual Coming Together of the Peoples Conference of the Indigenous Students Association: Where Should Lawyers Be When the People Come Together?

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