Dinebeiina Nahiilna Be Agaditahe, the Navajo Nation Legal Services program, was my introduction to American Indian legal issues. I was one of the first attorneys hired in the Shiprock office, in 1968. Legal Services was one of the newest forms of law practice available at the time, part of Lyndon Johnson’s Great Society War on Poverty that the president hoped would somehow balance out or neutralize the War on Viet Nam. It was just the sort of thing I believed I could deal with, or at least survive, being pretty sure I couldn’t deal with or survive the kinds of practice most of my Yale Law School classmates were aiming for —big New York firms, Washington bureaucratic jobs, and judicial clerkships.

Little did I know that the Navajo —and not just their legal services program— would open my mind to ontological issues, circling around a central question: what does it mean to be a human being? The Navajo taught me that the questions I was asking myself were about life as much as about law. I went there looking for a chance to use law to do something useful and discovered that the question of usefulness is itself culturally determined. In fact, when I found out just how useless I felt as a lawyer for Navajos caught in the maze of Anglo laws, I simultaneously learned what my usefulness was from the point of view of Legal Services and the Great Society: I was part of a morality play, albeit a morality that was also political.

One might say that until the establishment of legal services the American legal system functioned without all the components necessary for due process. The law provides whatever process (and processes) legal theory and doctrine determine are needed for a complete and proper legal system; as the saying goes, due process means “all the process that is due.” Some processes are built into the Bill of Rights of the Constitution, such as trial by jury and the requirement that warrants be issued only upon probable cause. Even these are not static: court decisions continue to rework definitions of “jury” and “probable cause” and revise underlying concepts of “peers” and “searches.” Due process has changed even as the words in the Bill of Rights have remained the same.

The notion of a “right to a lawyer” is of comparatively recent origin, and then only with regard to criminal law. In civil law, there is not really any such right at all; but Great Society legislation of the late 1960s established programs to provide lawyers in civil cases, as part of the War on Poverty. The justification was that people who cannot afford lawyers are at a disadvantage in protecting their legal rights, and that this has economic consequences —the perpetuation of their poverty. The legal services programs of the Great Society were proposed as a legal means to an economic end: lawyers for poor people would help eliminate poverty and thereby enhance the overall economy.

Whatever their economic merit, legal services programs certainly had political repercussions: aggressive lawyers, mostly young idealists, brought lawsuits challenging “business as usual.” In many instances, lawyers’ efforts were coordinated with the work of community organizers, who scouted for likely clients and used the possibility of litigation as an organizing tool.

My first week in Shiprock —then the Navajo community most engulfed by surrounding Anglo economy— brought me potential cases for challenging business practices that discriminated against Navajos and took advantage of their poverty. These cases could be vehicles for changing the legal landscape, not by adding any new due process, but by implementing the processes that were available to anyone who had access to a lawyer. One of these early cases stands out in my memory: the car dealer case. It reinforced lessons learned in law school: about how absurd law can be, and how significant is possession (“nine-tenths of the law”).

The car dealer and the stationery

In 1968, there were no car dealers in Shiprock, or, so far as I know, anywhere else in Navajoland. Navajos who bought cars went off-reservation —in this case, primarily to the town of Farmington, New Mexico. There, they were treated as second-class citizens, tolerated only for the money they might spend. This racism against Navajos in the border towns around Navajoland surprises visitors from the East Coast, where American Indians (or, more recently, Native Americans —more on that in another post) are viewed through the twin filters of time and distance, through which they appear as grand historical characters. Up close and in the present, in Farmington, Navajos were viewed as less than fully human, or, if human, as less than fully developed (the development standard is Anglo, acquisitive, boomer).

A Navajo car buyer, in Farmington, is an opportunity for easy profit. The system was honed to a routine; it depended on common legal practices and contract provisions that we set out to challenge through a class action lawsuit. A class action is group litigation: one or a few individuals are named as plaintiffs and are alleged to represent other individuals similarly situated, who are too numerous to name. The first step toward a class action is awareness that we are observing a practice that affects large numbers of people, raises a common pattern of facts, and implicates the same or similar legal issues.

Time and again, within the first few weeks, I heard stories of automobile repossessions based on failure to make payments under contracts that called for a “balloon payment” —a large, usually final, payment at the end of a long series of smaller monthly payments. The balloon payment is almost a guarantee of default, in the context of poverty: the immediate promise of “easy payments” combines with the perennial hope that things will get better, to entice a buyer into signing what almost inevitably turns out to be an impossible agreement. In New Haven, I had seen furniture store contracts with balloon payments structured to allow repossession of every item of furniture if default in payment occurred with regard to any single item.

Farmington car dealers sold and repossessed the same cars over and over; we could document this with our clients’ papers. Each car was like a goldmine, producing profit until it literally collapsed. Even a crash produced profit, because the contracts required the buyer to purchase insurance. We knew that balloon payments had been successfully challenged in other jurisdictions as “unconscionable” under the Uniform Commercial Code. We thought we had a chance to win that argument here; we at least wanted a chance to try.

A lawsuit requires a client; among the many people who came to the office with car repossessions —and sometimes with demands for payments after repossession, to fulfill the terms of the contract— I began to work with a few whom we felt would be best able to withstand the difficulties of a trial. I wanted clients whose particular fact situations would show the most egregious aspects of the practice. 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. I worked with our interpreters —Tribal Court Advocates who were fluent in English and Navajo and extremely creative at explaining legal concepts that are exotic even to Anglos— to build a group of plaintiffs who understood and supported what we were trying to do.

Our filing of the class action provoked immediate response in the local Bar Association. At one Bar luncheon, I was accosted by the attorney for the biggest of the car dealers we had sued; he railed at me for being an agitator, stirring up Navajos who had never complained before and who were in fact grateful for the services provided by his client. I was taken aback by this display of personal animosity, having been conditioned to seeing the law profession as a kind of club, where friendships or at least civility prevail in spite of diverging client interests. The local District Attorney, a remarkable example of the professional ideal —he implemented practices to respect defendant’s rights well before the Supreme Court mandated these in criminal law— came to my defense and to counsel me not to worry, saying, “That guy always takes his client’s cases personally.”

I knew that I was taking my client’s cases personally, in the sense that injustices and discrimination directed at them pained me, and I knew that I could be angry about these; but somehow —in ways I sometimes see as a moral defect rather than a strength— I wanted to be able to discuss these problems, even with my adversaries, rather than fight. Fighting, arguing, trying to prove what is obvious to me —these are debilitating experiences. I am continually amazed that I am drawn again and again into social conflict, almost as a duty or a moral obligation, when all I want is to be free of it. In this way, the law has always both repelled and attracted me.

Around this same time, an unrelated and obscure event was occurring in the legal world. The New Mexico Bar Ethics Committee had decided to take up the question whether the Navajo Legal Services Program was engaged in unethical advertising. This was prior to the revision of the American Bar Association prohibition on lawyer advertising, a long-standing part of the tradition that law is a profession and professionals do not advertise. The specific question before the Committee was raised by a complaint from a member of the bar who asserted that the English translation of Dinebeiina Nahiilna Be Agaditahe, the program’s Navajo name, constituted advertising. He asserted that the English phrase at the bottom of our stationery, “lawyers who work for the economic revitalization of the people,” was descriptive of all lawyers and therefore could be advertised by none. After some deliberation, and against the contentions of our program director that the phrase was not descriptive of all lawyers and that in any event it was only a translation of a name, the Committee decided that the English phrase was unethical and could no longer be displayed anywhere.

Meanwhile, the defendants in our car dealer case moved to dismiss, on a variety of grounds, including an assertion that our office was engaged in unethical practice. I knew that the structure of 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. The argument was that the government was funding legal services; it, not the named plaintiff, was the actual client; and the lawyer-client relationship was therefore violated. I prepared to argue that these ethical doctrines did not prevent the government from providing legal services, that this was not the financing of lawsuits, but the provision of a social service.

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 not arguing about the attorney-client relationship or even the grounds of the lawsuit, but was saying something about the stationery on which our court papers were filed. After several moments of bewilderment, I realized that the car dealer attorney was referring to the Bar Ethics Committee decision and saying that our lawsuit should be dismissed because it was filed on unethical stationery! Every page of the pleadings stated the name and address of the law office, with the English translation appearing below the Navajo name. This, the attorney argued, was in clear violation of the recent ruling of the Bar Ethics Committee and should be stopped by this court. Nothing I said was sufficient to prevent the court from granting the motion to dismiss on the spot. There was no leave given to refile on different paper; no way out of filing a new complaint and waiting for a new hearing date on the court calendar.

It is hard to explain something like this to a client, let alone a client for whom the whole Anglo legal process appears as an invasion from another world. Fortunately, another event had occurred in the legal world —this one related to car dealers and not at all obscure: the Navajo Nation had enacted a law banning self-help repossession of automobiles. Self-help reposession means the dealer simply finds and tows away the car. The new law required a Tribal Court order to allow repossession. We still nurtured the idea of a class action suit in state court against the dealers, but now we had an accessible individual remedy in Tribal Court: a client could challenge balloon payment contracts and other such devices in a Navajo court, blocking repossession in the meantime.

Like other legal remedies, the Navajo law on repossession could be effective only to the 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 about the requirement for a court order, the car was back on the lot in Farmington, out of Tribal Court jurisdiction.

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 said he might be in trouble. He had been riding into Shiprock with his brother and seen a tow truck with his pickup hitched behind, heading toward Farmington. He told his brother to turn around and give chase, until they came abreast of the truck and forced it to stop. My client told me he pulled out a gun and ordered the driver to unhitch the pickup, which the man did. He then watched the truck drive away and drove his own pickup to my office. I was elated; at last, self-help on our side of the law. It was unorthodox, to be sure, but it saved the truck and 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 didn’t know 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 told my client I thought he was safe and that we were prepared to enforce the new law, if there were another attempt. I never heard of another attempt and I think of this as the case we won on that issue.