Copyright 1999 Federal News Service, Inc.
Federal News Service
SEPTEMBER 29, 1999, WEDNESDAY
SECTION: IN THE NEWS
LENGTH:
2037 words
HEADLINE: PREPARED TESTIMONY OF
ERIC D.
EBERHARD
BEFORE THE SENATE INDIAN AFFAIRS COMMITTEE
SUBJECT - S. 1508, THE INDIAN TRIBAL JUSTICE SYSTEM
TECHNICAL AND LEGAL
ASSISTANCE ACT
BODY:
Chairman Campbell,
Vice Chairman Inouye and members of the Committee:
My name is Eric Eberhard.
I am a partner in the Seattle office of Dorsey & Whitney LLP. My practice is
centered on the representation of Indian tribes, tribal organizations and
entities doing business with Indian tribes throughout the country. The Indian
Law practice group at Dorsey & Whitney is comprised of 13 attorneys and two
non-attorney professionals who work out of offices in Washington, D.C.,
Minneapolis, Minnesota, Orange County, California and Seattle, Washington. Ten
members of our group are Indian.
I thank the Committee for inviting me to be
here today to testify on S. 1508, the Indian Tribal Justice and Legal Assistance
Act. Among the clients whom I have the privilege to serve is the National
Association of Indian Legal Services (NAILS), which has been a pro bono client
of the firm since 1995. We are pleased to be able to make the resources of the
firm available to the programs funded by the Legal Services
Corporation which comprise NAILS.
I am here today to speak in
support of S. 1508. I commend Chairman Campbell and the Committee staff for
their work in developing this bill and I am hopeful that it will receive prompt
consideration here in the Congress. If enacted, the bill will authorize the
Attorney General to make grants to: (1) non-profit entities which provide civil
or criminal legal assistance to Indian tribes, members of Indian tribes or
tribal justice systems pursuant to federal poverty guidelines and (2) to
national or regional membership organizations and associations whose members
consist of tribal justice system personnel to provide for training and technical
assistance for the development of tribal justice systems.
Based on my
experience in the practice of federal Indian law, I am confident that S. 1508
would assist in the process of developing and strengthening the institutions of
tribal justice and creating the legal infrastructure on the reservations which
will allow for sustained economic opportunity and growth.From 1972 through 1978,
I worked in legal services. From 1972 to 1973 1 worked for the Legal Aid Society
of Cincinnati where I was assigned to cases involving landlord/tenant disputes
and the problems that were then being encountered by the low income participants
in federally subsidized mortgage programs. My work there involved litigation in
the state and federal courts as well as the development of new building and
landlord/tenant laws for the City of Cincinnati. My caseload at any time
consisted of approximately 600 open files. There were eighteen attorneys working
in the office who all had similar caseloads. There was little doubt that the
services of the office were in great demand by the low income community in
Cincinnati.
In 1973, I moved to the Navajo reservation and went to work for
DNA- Peoples Legal Services as a staff attorney in the Window Rock office. I was
immediately struck by the contrast in my living conditions. My modest, but
comfortable apartment in the city was a thing of the past. No longer were the
amenities of running water and electricity available in the small cabin I was
able to rent from a Navajo family.
No longer was I engaged in the urban
practice of poverty law. The libraries, courthouses, law firms, law enforcement,
electricity, telephones and fax machines that were so readily available and
which had been taken for granted in my practice a few weeks earlier were either
gone, in scant supply or only available at great distances. The easiest of tasks
became something to be planned well in advance. Contacting a client to prepare
for a hearing in court now required weeks and months instead of a few phone
calls. Interpreters were necessary for working with most of the clients, for
whom Navajo was the first and only language. Conducting basic legal research
eventually became possible at the office as the program increased its library
resources, but the need to travel several hundred miles to conduct extensive
research was a constant during the five years I worked at DNA. The nearest state
court was a sixty mile round trip over a stretch of highway that had more
fatalities per year than any other rural road in the United States. The nearest
federal district court was about two hundred miles away. The nearest federal
court of appeals was 1,900 miles away. The tribal court was more accessible
geographically, but was still very much a developing institution. It had only
been seven years since tribal law had been codified. Decisions of the courts
were not generally reported. Tribal judges had only recently been able to shed
their dual roles as prosecutors and judges in criminal cases. Interpreters were
needed in any court--federal, state or tribal--in order to be able to present a
case involving most of our clients.
In 1973, DNA had been on the reservation
for six years. It had been one of the very first programs to be started on a
reservation by the Office of Economic Opportunity (OEO). One of the first
obstacles the founders of DNA had to overcome was the natural suspicion with
which the Navajo people regarded lawyers. The term "lawyer" literally translated
into the Navajo language as "one who argues." Being known for being
argumentative was not a desirable thing in the world of the Navajos. The name
DNA is an acronym for a Navajo phrase which was intended to overcome this
problem. The phrase means "lawyers working for the economic revitalization of
the People." In order to add meaning to the phrase, DNA attorneys were very
aggressive in asserting the rights of Navajo consumers against the operators of
the trading posts on the reservation through litigation and through successful
efforts to convince the Bureau of Indian Affairs to rewrite the regulations
governing the licensing of traders. These efforts helped to move the Navajo
economy out of the era of barter and pawn and into the era of wages. DNA
attorneys were also instrumental in the development of successful economic
enterprises which continue to operate today, such as the Crownpoint Rug Weavers
Cooperative. This business, which is owned and operated by the weavers
themselves, succeeded in creating a way to market Navajo rugs which results in
100% of the profit going to the weaver. Most weavers who are not participants in
the cooperative realize less than 50% of the profit from their artistry.
The
job of getting DNA established in the larger reservation communities was still
underway in 1973. Opening an office always meant more than renting space, buying
furniture and equipment and hiring staff. Most often it meant that program staff
and community volunteers had to build a building to house the program, train
community members in everything from legal secretary skills to the skills
necessary for effective lay advocacy including: legal research and writing, case
preparation, basic trial skills, negotiation skills, the law of evidence and
procedure. The resources to accomplish these tasks did not exist on or near the
reservation. We had to develop them at the same time that we provided a full
array of civil legal assistance and some criminal defense assistance to our
clients. The compensation DNA was able to pay was not great. My entry level
salary as a third year attorney was about $9,000.00. Five years later I was
making $10,000.00. Things have not improved in any measurable way when it comes
to compensation today. Over time, DNA has contributed to the development of a
sophisticated legal infrastructure in the Navajo Nation. The courts are now
courts of record with reported and published decisions. Navajo law is fully
codified and annotated to make it readily accessible and more predictable.
The Navajo Nation is a leader among all governments in alternative
dispute resolution systems with its Peacemaker Courts which draw on Navajo
custom and tradition for the non-adversarial resolution of disputes.
Former
employees of DNA have gone on to become prosecutors, judges-- including the
current and former Chief Justice and both sitting Associate Justices of the
Navajo Nation Supreme Court-- members of the tribal council, attorneys in the
tribe's Department of Justice- including two who have served as the Attorney
General of the Navajo Nation, and the former President of the Navajo Nation as
well as the current Vice President. There is now a Navajo Nation Bar Association
and a thriving private sector among the licensed members of the Bar. The impact
of DNA has not been limited to the reservation. Former employees have gone on to
become assistant attorneys general in several states. At least one is an
Attorney General. A few serve in the state judicial systems. Several have served
on the staff of the Congress or in the departments of the Executive Branch.
Several have become law professors or have continued to practice Indian law with
public interest law firms. Many have gone to work as in-house counsel for tribes
around the nation. Many more have gone on to become successful in the private
practice of law where they continue to contribute to the development of the law
both on and off of the reservations. Each year several young Navajos complete
college and continue on to law school. And, each year a few young Navajos finish
law school and return home to play a role in one of the institutions which
comprise the legal infrastructure being built on the reservation.
In short,
DNA and the people who have comprised its family since 1967 has been a major
catalyst for constructive change in the Navajo Nation and elsewhere. However,
much remains to be done. Unemployment and the poverty which accompanies it still
afflicts the great majority of reservation residents. At the same time that DNA
has been helping the people of the Navajo Nation to settle disputes and build
the legal infrastructure necessary for economic growth, the world around the
reservation has been changing at an accelerating rate. We have seen an
incredible increase in wealth and information in our country in the past thirty
years. Even with all of the progress that has been made in the Navajo Nation,
the gap between what is available on the reservation and what is available off
of the reservation has grown wider. It is still very difficult and relatively
expensive to access the most basic services on the reservation. In my practice,
I now take it for granted that I can use my computer to download the most recent
decision from almost any court in the federal or state system in a matter of
seconds or minutes. The same is true with federal and state statutes. The
hardware and software available to me allows me to represent my clients more
efficiently and effectively than ever. The access to all types of information
and the ability to present it in ways which demonstrate a point or document a
need is unparalleled. Unfortunately much of this capability is absent or not
consistently available to legal services programs and justice systems operating
on reservations. Seventy percent of homes in the Navajo Nation still do not have
telephones, much less access to the hardware and software necessary to access
the digital world and its wealth of information.
The institutions of justice
still lack sufficient numbers of trained personnel. This problem exists at all
levels-- from law enforcement, to the courts, to the legislature, to the
executive branch and in the private sector. Basic skill training is needed at
all levels.
The institutions of justice still lack the basic physical
resources. Jails are dilapidated and overcrowded. Courts are operating out of
trailers or substandard facilities. Libraries, computers, files, record keeping,
rocketing and other basic tools of the modem judiciary and law offices are not
adequate or are not present in some instances.
S. 1508 is needed to help
close the gap and help to create the certainty and social stability which flows
from a well developed legal infrastructure.
I hope that my testimony is
helpful as the Committee and the Congress consider this legislation. I
appreciate the opportunity to be here today and will be happy to be of any
further assistance the Committee may deem appropriate.
LOAD-DATE: October 1, 1999
