Peter d'Errico Meets the Law

I entered the world of law backwards, in the mid nineteen-sixties, defending myself against other choices: draft, exile, prison. By any standard measure of comfort, Yale Law School seemed the best of bad choices. By the time I got out (after experimenting with exile after all), the "war on poverty" had managed to fund a legal services program in Navajoland. I became a lawyer in the Shiprock office of Dinebeiina Nahiilna Be Agaditahe, Inc.

One of my first projects was to create a code of juvenile procedure for a tribal judge, integrating the U.S. Supreme Court's In Re Gault (due process standards) with traditional Navajo clan practices for handling young people's troubles. Right away I knew there was something impossible going on. Law was cannibalizing community. At least that's what I felt. But who was I to question the judge? And besides, there was a certain amount of prestige in working with the judge at all. So I did it, or tried to, all the while coming better to understand Alice's experiences through the looking glass.

In another project, my partner and I (law-partner, that is; this was in the days before "partner" and "significant other" became epithets for one's closest companions) collaborated on a class action aimed at stopping wanton exploitation of Navajos by used car dealers in Farmington, New Mexico. After months of investigative work and drafting, we got our day in state court and were promptly thrown out on the ground that our legal stationery was unethical. It translated DNA's name as "lawyers who work for the economic revitalization of the people," printed across the bottom of the page. An ethics committee had determined this to be an unlawful form of lawyer advertising (another relic of our culture).

When I won and lost a cross-complaint for assault and battery, in response to a trading post's complaint for debt, I knew I couldn't go on. The judge in that case, a local magistrate, declared we had proved the assault, but there would be no award for damages because my client was an old Navajo man who had no income (and thus no lost income) and no medical costs (since he had been treated at a tribal hospital). I walked out of court with the old man and his family, knowing that I was supposed to say, "Don't worry, we'll appeal." But I couldn't.

I had discovered that my whole role was to wear the white hat in this modern western drama, to look the part of a good guy, but not really to make anything change. I was the icing on the cake of justice. I was part of the package deal from the state, which already provided the laws, the courts, the police, the jails, and now was to provide the counselors for the downtrodden.

These stories are the tip of the iceberg of what followed: I became an anti-law lawyer and teacher of legal studies, at the University of Massachusetts/Amherst. For more than thirty years, I taught about the history and philosophy and culture of law. Once a year, I taught a course called "Legalization of American Indians," which is my label for what the state has done to native peoples over the past few hundred years: confine and define human relations in legal categories.

When I wasn't teaching Indian law, I still carried the influence of this work into my classroom. I see the history of law as an imposition of the state system of government on non-state societies everywhere. The philosophy of law is generally a justification for this, in the name of reason or god or economics. The history of Europe, of "white civilization," is filled with examples, from "witches" to "enclosures."

I still work directly with Indian law. For example, I represented members of a Native American Spiritual Awareness Council--a group of inmates in state prison--to defend and expand their freedom of religion: their access to headbands, pipes, Purification Lodges, and a weekly Circle. The case, Trapp, et. al v. DuBois, et. al., resulted, after ten years in the Massachusetts courts, in a court-ordered agreement with the Department of Corrections to protect spiritual practices and provide Lodges.

Also in Massachusetts, I represented two Wampanoag men charged with violating a local shellfishing ordinance. The case, Commonwealth of Massachusetts v. Michael J. Maxim and David S. Greene, resulted in unanimous decisions of the Massachusetts Appeals Court and Supreme Judicial Court upholding Wampanoag fishing rights.

Elsewhere, I have been working with the Western Shoshone National Council over a number of years in a variety of legal contexts, including federal and state court litigation in Nevada, and petitions to the United Nations and the Organization of American States.

On the Internet, I have been active with NativeWeb, a website for Indigenous Peoples, since the beginning of that project. This effort is an important part of the growing global consciousness of indigenous peoples. It is a tool for what Phillip Deere called "a rightful education."

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Author: Peter d'Errico