Interview with Lawrence Baca: Thurgood Marshall Award Winner

Vol. 39 No. 1

By.

Doing what he has always done, instinctively and well—battling stereotypes—Lawrence Baca is the Lone Ranger, not Tonto. The self-described “beach Indian” is far from laid-back when it comes to pursuing justice, never shying from a fight for what is right and often standing alone at the leading edge of crusades for change—from challenging racialized mascots in high school, to founding his college Indian organization, to becoming the first American Indian ever hired through the Department of Justice Honor Program, to filing more cases on behalf of American Indians than any other attorney in the history of the Civil Rights Division. His cases include several of great import for Indian voting rights and the “Brown v. Board of Indian Country.” He literally changed the face of the Justice Department, both by his example and recruiting efforts, and he is a charming fellow and gifted photographer to boot. It’s our pleasure to both celebrate and introduce you to Lawrence Baca.

WAS: Let’s start with your formative years through college at Santa Barbara.

LB: I was born in Colorado in 1950 and my father was a farmer/rancher there with his dad and brothers. In 1953 he moved to California and I grew up in San Diego County, a thousand miles away from my tribe and 2,000 miles away from my family, so I was as much a beach Indian as anything else. But my mother is not Indian, and my father is a full-blooded Pawnee Indian, and they met at a time when it was against the law in half the states for an Indian to marry a white person. I often joke about being a member of the Virginia Bar Association where it was against the law in Virginia for Indians to marry whites, and when you read the famous Loving v. Virginia case, there is a footnote where they specifically talk about the Indians and whites being in an illegal marriage, except for what is referred to in the literature as “the Pocahontas footnote” because it says that if you are less than one-sixteenth American Indian that an Indian can marry a white person because he might be a descendant of John Rolfe and Pocahontas. My wife and I met in high school although we didn’t start dating until I was in college, but at the time we first saw each other, it was against the law in Virginia for us to marry.

WAS: Tell me about your experience growing up as a transplanted Pawnee in California.

LB: There is a racialized history to California most people are unaware of that included a form of segregation in schools; segregation throughout the country was at the time either mandatory in some states or in allowance in some states. California was an allowance state, and basically it meant that if you wanted to, you could have three separate schools, like a school for Indian kids, a school for black kids, and a school for white kids.

WAS: And this was, of course, over ten years past Brown v. Board.

LB: Yes, by the time I started school we were at or beyond the Brown v. Board cases. I went to a school where 99 percent of the kids were non-Indian. We were in a part of the county that was considered to be on the other side of the tracks and so there were a few Hispanic kids, and my brother and I were the only Indian kids at El Cajon Valley High School. When you go farther out, there were about fifteen Indian Reservations in San Diego County; the racial restrictions in the county for Indian people were out there in Santee and those areas where there were certain parks, restaurants, movie houses that had signs up saying “no Indians allowed” or “no Indians served” and I have a very strong and vivid memory of those signs.

WAS: Did your father counsel you about dealing with discrimination of that kind?

LB: My father, being an Indian, had a fairly easy attitude about it all. His response was, “Well, if it’s a place they don’t want me, I probably don’t want to eat with them anyway.” Later in life, I discovered that when he was twenty-one, he made the mistake of walking into a white family establishment in rural Colorado. His truck had broken down and he was looking for help to get back into town, and six white men jumped him, stabbed him twenty-seven times, and then shoved him back out the door bleeding to walk back to the farm. So, I always guessed from his perspective, having a sign that says don’t come in here and you walk away is better than going in and being stabbed. Obviously, of course, he survived the event and went on to live many years after that.

WAS: El Cajon Valley High, ironically, had the “Braves” as its name and an Indian caricature as a mascot?

LB: Right. One of the things I did later in my career that I didn’t know I would be doing then was fight against the use of racialized mascots in high schools, elementary schools, colleges, and professional sporting teams. It’s offensive and it’s an offense that we don’t do with respect to other racial or ethnic groups. We were the El Cajon Braves. In the middle of the school is this twenty-foot-tall carved wooden Indian. The freshman project every year is to sand it down and revarnish it. But then, for all of the school materials was the actual mascot character, which is a caricature . . . it’s this big pot-bellied guy, with a big belly, short, big hooked nose, with a headband with an eagle feather, and it’s a broken eagle feather. In the Indian community, you would never have a broken feather. There is a ceremony that you use to send the feather on, and eagles were sacred animals that carry out prayers and our messages to the Creator. So all of the antics that went on at that high school were so offensive on so many levels that it would be difficult without a sociologist to explain it all.

WAS: How did you at the time, undoubtedly lacking at eighteen the services of a sociologist, handle it?

LB: I got through it fine. I was a fairly well-accepted kid on campus, student government, cross-country, and all that good stuff. My younger brother comes along, in ’68 or ’69, when racial and ethnic groups in America were starting to come into our own, saying, you know, we want equality. I was in college and my younger brother sees me as this radical young Indian. So he grows his hair out, to establish being Pawnee—so many in our tribe wear their hair uncut for religious reasons. He also went out for the cross-country team but got told by the school that his long hair didn’t meet the school’s dress code and he was kicked off the team. I protested and the school administration guy says, “Well, I’m not saying he can’t practice his religion; we’re just telling him he can’t participate in extracurricular activities.” My brother really wants to participate in school extracurricular activities and notices that the El Cajon Braves have a kid in a leather buckskin outfit marching in front of the band with a headdress and face paint. So he says, “I’m an Indian and I’m the only Indian kid here. I’ll go out to be the band mascot.” He gets told again by the administration that because of his hair he can’t participate as the band mascot. The irony was an Indian kid with long hair can’t be the band mascot, so that a non-Indian kid has to put on a long wig and face paint to look dark-skinned, wear the headdress, and be the band’s “Indian mascot.” For the record, the school still, all these years later, has the same mascot.

WAS: With this background, how did you go about choosing a college and end up in Santa Barbara?

LB: I am the first member of my family to go to college, so I had absolutely no idea how you even apply. I always assumed I would go to college. My buddy Jack Phelps worked in student government. His family is big into education. He knows how to fill out the applications. He gives a sales pitch to me that UCSD is the place to go. He helps me fill out applications, makes sure everything is done right, and then we hop in a hot rod and go from El Cajon to UCSD at twice the speed limit and I stick my application in the door one minute before the deadline. I have never forgotten that I went to college in great measure due to a very good friend who helped me through the process. He has no memory of having done it, and I told him it doesn’t matter if you remember. I remember.

WAS: After you got to UCSD, you transferred?

LB: There were a couple of other Indian kids on campus and we formed an Indian student organization that continues to exist today. I, however, fall in with a couple of roommates into drinking and partying. By the end of my freshman year I am on academic probation. So I made the decision to transfer to Santa Barbara.

WAS: Why did you choose UCSB?

LB: As you know, what a wonderful place to be! I got an alumni award and the chancellor said she found it difficult to explain what a wonderful campus it was. So when I gave my speech, I said, “Well, let me help you out. They are doing a retranslation of the Dead Sea Scrolls and they’ve discovered Adam and Eve were actually students at UCSB.” UCSB for me made many, many changes. First off, I arrive on campus and see signs for an organization called Native American Awareness, basically a group of non-Indian kids who were raising money to bring water to the Santa Ynez Indian Reservation, which at the time had no running water. They raised several million dollars to get water to the reservation and, I discovered forty years later, it’s a great joke on the cycle of life as the tribe now sells bottled water as one of their enterprises. Now that there was a Native student on campus, it was decided I should probably lead a Native American Awareness Group, so we took this body of energetic young kids and started a tutorial program on the reservation at Santa Ynez. That morphed itself into a tutorial program in Santa Barbara where we studied with Native kids and discovered very quickly that the needs also included Hispanic, black, and white kids. At one point we had forty college students visiting elementary and secondary students and helping them do their work. After my graduation, that organization went on for at least a decade.

WAS: You also started a program, didn’t you, of outreach to prisoners at Lompoc Federal Prison?

LB: Even though I was the only Indian student on campus, the great joke was I started an Indian organization and elected myself president with a unanimous vote. I became very well known for my outreach work trying to get other students there so when a letter came in from Lompoc addressed to any Indian at UCSB, it was put in my box. The letter was from a group of Indian inmates. Because of the effect of federal laws on Indian reservations, many crimes that wouldn’t be federal in any other area are when committed on an Indian reservation by an Indian against the personal property of another Indian.

WAS: Had the Indian prisoners at Lompoc created their own organization, prior to contacting you?

LB: The prisoners were creating an organization called The Tribe of Five Feathers and looking to meet people from outside. I went up to the prison the first time and said, “What is it that you need?” The guy said, “We need to meet people who didn’t commit crimes. All of us inmates have committed crimes and we would like to help prepare ourselves to go back into the world by having conversations on a regular basis with people who didn’t commit crimes.” This meant these guys were smart enough to understand the need for the integrative process back into society. So probably twice a month we would go up to the prison and just spend a couple of hours talking with folks.

WAS: You ended up teaching classes, didn’t you, particularly helping inmates learn how to have successful parole hearings?

LB: The inmates, like the other racial and ethnic groups in the prison, had classes. I said, “What can I teach you? I’m twenty years old.” They said teach us what you know. I discovered that the parole rates for Indians were much lower than the parole rates for non-Indians. I believed that was primarily because in the Native community we are taught that when an Indian confronts someone of authority, you look at your feet. Take a humble position. I know the parole boards were largely non-Indians and in the Anglo community folks like you to look them in the eye and tell them your life plan. The majority of these folks are from reservations that have weak educational backgrounds, and we taught them basic English, speech, and how to make a presentation to the parole board about your life plan. When you tell the parole board who knows it’s costing $2,000 a day to keep you in prison, you have a life plan, they’re going to let you go. If you’re standing in front of them looking at your feet, they are going to send you back in.

The parole rate for Indians increased to the best in the prison. The two or three years we were there, no Native inmates who were released on parole came back. The real power of all of that came home to me a few years ago when my supervisor at the Office of Tribal Justice was giving a speech about my work and he talked about the prison work and he said, “I don’t know what you did in college, but Lawrence’s work was setting men free.”

WAS: You also essentially created your own major at UCSB, in Indian Studies, didn’t you?

LB: The university provided me first with the opportunity to do my own individual major, American Indian History and Culture. One of the other great things for me at UCSB is that in my last quarter, two quarters into a fifth year, I taught a seminar. The university had a rule that you can teach if you had the highest degree attainable in your field. No one in America offered a master’s or PhD in Indian history at the time, so I actually taught while I was still a student. A professor signed all of my grade cards, but it was my class and, again, a wonderful experience; I don’t know if you can get that at a lot of other universities.

WAS: Let’s talk about the journey from your studies and activism at UCSB to Harvard Law.

LB: I actually had a recommendation from the UCSB chancellor and was highly honored that he would even know my name, but to put a pen on paper and recommend me. I applied to a bunch of law schools. Then I started getting the letters back. I don’t get into Yale, don’t get into New Mexico—a marvelous story because they let me teach there a few years later and I tell them, “It’s great you wouldn’t educate me, but you let me educate your kids.” Then the letter from Harvard comes. You look at films—when people mention a law school, all of the major characters from literature with the possible exception of Atticus Finch went to Harvard. So if you can afford it or not, you’re gonna go. It turns out I’m the ninth Indian to graduate from the school.

WAS: How was your experience at Harvard?

LB: It’s an incredible experience to be there. The people around you are all the first in their class from a bunch of really important colleges and you’re hoping that you can keep up. But Harvard is a mixed bag. I loved the experience, wouldn’t trade it for anything, but I also know that there was no faculty of color at the time. I think there was one African-American professor who was not yet tenured. No Native professors, and there still aren’t any Native American professors. There seemed to be a diminution of cases involving federal Indian law. Property always starts with Johnson v. McIntosh. You have to steal it from the Indians before you can sell it to each other, and so Johnson v. McIntosh solidifies the doctrine of discovery, but when you read the case, you go, “Oh my God, how can they actually justify this?” Then, of course, later you find that the chief justice had about three or four hundred thousand acres of land that wouldn’t have been his had he ruled in favor of the Indians in the case. I have a distinct memory in another class in administrative law where the case of Morton v. Ruiz came down and altered administrative law significantly. But at the time, the professor’s response was, “Oh, this is just a little Indian case, it’s of no importance . . . the Supreme Court does funny stuff with these little Indian cases. You really don’t have to learn it.” Then a couple of years later I saw “Administrative Law Surprises in the Ruiz case.” Basically, the court used an Indian law case to further diminution of Indian law. On the other hand, when my father had heart attacks in my law school years, the school said they would give me a loan to pay for plane tickets to California. Every class that I was in, I received a call from the professor or secretary asking about my father and telling me to take my time coming back up to speed. I’ll never forget the law school for that.

WAS: At UCSB, as you were contemplating the horizon ahead, what inspired you to choose law school?

LB: When I grew up where I did in a racialized San Diego and to some extent California, you’re sort of compelled towards asking yourself what can I do personally through my life and my work to change that? I had actually had an opportunity as sort of a would-be writer for awhile. But the law was a more powerful tool to move change, and, again, when you think of the times, 1964 as a high school freshman, that is when the public accommodation statute was passed. In 1968 the Housing Act was passed. The first African-American student goes to El Cajon High School in 1969 only because you can’t discriminate in housing anymore. In 1972 there was the Equal Credit Opportunities Act, which I later on enforced in a major way for Indian country. All of these were enacted during my lifetime and so, in that mix, you start to choose where you might go.

People told me, “You talk a lot; you ought to be a lawyer.” I felt compelled to do it and made the assumption I was going to work for California Indian Legal Services. While in law school I clerked at the Escondido office. When I left, I had really good recommendations from the lawyers there so I called George Foreman, director of the office. I said, “George, I would love to come back. This is what I’ve gone to law school for.” George said, “Well, you know, yeah, maybe why don’t you get the application in. The deadline is in November and we’ll be making decisions in February.” At Harvard, if you haven’t got a job by February, they stick you as a “class anchor man.” I heard there were only fifteen American Indians graduating from law school in 1976 in the country. I was Native, I was from California, I had clerked at their offices, they had an Indian preference, they loved my work, and I was one of only two Indians at an Ivy League school. I thought I had a pretty good chance of getting the job and he says, “get your application in.” So I started looking for other places to apply. Years later, George says, “Well, I didn’t know you were an Indian. I thought you were a Hispanic kid just trying to use us to come back to California.” My snippy response has always been, “Yeah, George, and I promise not to tell the real George Foreman that you were using his name.”

WAS: So how did CILS’s loss become DOJ’s gain?

LB: I had a friend in one of my criminal law classes who was at Harvard getting his masters’ degree and his wife worked in the unit in the Civil Rights Division called the Office of Indian Rights and he said, “Hey, they don’t have an Indian personnel there . . . they would love to have some Native attorneys. You really ought to get your application into the Civil Rights Division.”

I applied; I got in. I am the first American Indian ever hired through the Honor Program. It turns out the importance of that is more that it was begun in the fifties and took them twenty years before they found an American Indian. Attorney General Eric Holder was also in the class of 1976. We started at the Justice the same week. Eric, of course, has gone on to have a pretty spectacular career. I suppose the one thing about my career that I regret is that I retired before Eric became attorney general because it would have been a great honor to work for him.

WAS: Were you able to plunge right in to Indian Rights cases at Justice?

LB: So I start at the Office of Indian Rights, created because the Department had only filed two cases on behalf of American Indians under the Civil Rights statutes between its inception and 1973. In 1973 the Wounded Knee Riots occur. The Civil Rights Division realizes there are many problems on Indian reservations. A task force was formed to survey these problems. The task force becomes the Office of Indian Rights. They wanted Native attorneys. Lots of cases were filed on behalf of Indians during the time. This office is distinguished from the Office of Tribal Justice, formed by Janet Reno to be a liaison between her office and the 575 federally recognized tribes in the country because there was no coordination on federal Indian law issues or enforcement in Indian country of federal Indian law. She formed that office and I eventually became the deputy director there for the last four years of my career. But the Office of Indian Rights was a very small cadre of attorneys that enforced all of the civil rights laws when an American Indian was a victim. Internally, we were in separate units—housing cases for the housing section, employment, etc. Whenever Office of Indian Rights brought a case, it was playing with somebody else’s statute and they were not happy that this other group of lawyers was messing around with what they considered their statute and so they never brought cases on behalf of American Indians and referred to them as “Indian cases.” Other cases are not referred to as “black cases” or “Hispanic cases,” but cases involving Indian victims were always called “Indian cases.”

WAS: Didn’t that unfortunately devolve, at some point, into dissolution of your Indian Rights section?

LB: Eventually, Assistant Attorney General Davis actually announced the day he arrived at the Department of Justice: “I don’t think this unit should exist. It’s inappropriate that there be a separate unit.” I was a mouthy young lawyer at the time and I protested. But in 1980 he disbanded the Office of Indian Rights, telling the Native community you will no longer be limited to seven Indian lawyers filing cases on behalf of Indians; you will now have 475 lawyers in the Department of Justice. Unfortunately for Native victims, the number of cases brought annually by the Civil Rights Division on behalf of American Indians plummeted. At my retirement party, the assistant attorney general for the Civil Rights Division said I filed more cases on behalf of American Indians than any other attorney in the history of the Civil Rights Division. What she didn’t say, and probably wouldn’t in the Great Hall of the Department of Justice, is that between 1980 and 1990 I didn’t just file more cases on behalf of American Indians than any other attorney; I filed more cases than all of the other attorneys combined. What’s interesting is that my cases involving American Indians were at most ten percent of my overall case load. The overwhelming majority of my work was in the African-American community; I had a couple of Hispanic victim cases; and I actually held the distinction of having filed a sex discrimination case on behalf of males.

WAS: Did you find you had to penetrate cultural barriers in order to encourage the Native American community to even bring potential cases to your attention?

LB: For the Native American community, its primary concerns are tribal sovereignty about the survival of the tribe, about water rights, treaty rights, land rights, and so the concept of being overly concerned about a restaurant that has a sign saying you can eat there doesn’t really rise to the level of importance for many tribal leaders. The way to get to those people who have been discriminated against, whether it’s the right to vote or the right for a loan, is that we’ve got to be affirmative in going out. The reason I took over the conference the Federal Bar Association runs on Indian law was because my name and title as a civil rights lawyer for the Department was sent out in a mailer and magazine to 20,000 people several times a year. Over twenty years while I was chair, it grew to 750 annual attendants, and with 750 lawyers who worked with Indians they saw me stand up and speak, they heard my name, they had my phone number. The reason many Indian victims came to me was because I made it a point to get out there and put my name out.

WAS: What is the current administration doing in this regard?

LB: This administration has a committee within the Civil Rights Division that has formed an Indian outreach committee and so there’s one person from each of the sections that all meet as a group once a month and talk about what they’re doing and where they’re going. So someone from the Housing Section is going to Montana, where they will also talk to people about issues on voting rights or public accommodations. We try and marshal the resources. And so hopefully right now the cases involving Indian victims are picking up. Around 1990, the assistant attorney general at that time started a similar process and got me and a couple of other Native attorneys involved in outreach, so after this extremely long Native drought between 1980 and 1990, things did start picking up and a joke I made to the next senior Native attorney behind me was, “Dave, for the first time in ten years, I don’t think I could make out a case of race discrimination against the Civil Rights Division.”

WAS: You found yourself, didn’t you, in an ongoing internal battle advocating for support of efforts to enforce Indian rights?

LB: During the time period, of course, there seemed to be individuals who were not just not paying attention to Indian victims, but affirmatively antagonistic. I had a deputy section chief with the Civil Rights Division doing my annual review. He looked at my docket and said, “I think you do too much work with American Indians.” I responded: “Do you tell the African-American attorney that he did too much work with African-American victims,” and before he could respond I said, “Have you ever told a white lawyer that he ever did too much work with African Americans?” Within that same year, the section chief, when I was up for promotion, said, “If you could back off your work in Indian country for a short period of time, bring some other cases, I can get you promoted and then you can go back to your work with Indians. I think it’s great stuff, but I just would like this shift to get you through your promotion.” While he thought my work was good and these were strong cases, he believed the promotions committee didn’t see work in Indian country as being the equal of other civil rights work. That’s not at all a positive message, either to me or to any of the other Native attorneys that would want to work at the Department. So, there was kind of this mix of some benign neglect and then a few individuals’ outright hostility to bring cases on behalf of American Indians.

WAS: But you persevered through that atmosphere and persuaded other Native attorneys to join the Department?

LB: I stuck it out. If somebody puts the question to me, “What’s the most important thing you did at the Department of Justice,” my response will actually not be a laundry list of my cases but that I changed the face of the Department. First, because I stuck it out in the face of this because I said, “If I’m not here fighting to get cases with them, who will be?” Second, I went out and recruited other Native attorneys. In 1976 when I got there, there was one other Native attorney. He had been hired the year before and the attorney general told Congress that he was the first American Indian ever hired at the Department. By late in the Clinton administration, there were twenty-two Indian lawyers working at the Department and probably another twenty-two assisting U.S. attorneys who were Native.

WAS: You accomplished that recruiting by going out to law schools or by going out to the Indian community and speaking with folks there?

LB: Both. I do not believe I recruited every Indian who ever worked at the Department, but they would tell you that the ones that I didn’t recruit were recruited by someone I did recruit. What I’ve said for years is, “Well, I don’t care who is in the administration, I don’t care who the attorney general is, or who the president is, if you let me walk into a law school and talk to students and tell them what I did last week, I will convince them that the Department of Justice is a place that they ought to consider.” It’s plain and simple. You don’t talk about the policies that might be different than you want them to be; you talk about what you did last week. “Last week somewhere in America somebody’s life was better because of the work of attorneys in the Civil Rights Division at the Department of Justice.”

WAS: That is a beacon for recruitment purposes, but you nonetheless found yourself riding the political waves in prosecuting Indian rights cases over the years, from one administration to the next.

LB: Again, one of the other things that occurs then by 1990 is they have this shift in attitude with the assistant attorney general, with more Indian issues. By then there are probably six Indian lawyers in the Civil Rights Division. So you have a body of Native attorneys saying to their section chief, you need to bring cases on behalf of my race. As a footnote, an Indian woman was hired into the housing section when I worked there. When the section chief found out she was Native, he said to me, “I don’t think it’s appropriate that the only two Indians from the Department of Justice work in the same unit. I raised holy hell about it at the time. One of the reasons that the Native attorneys there loved me was because I put my neck on line when it involves their rights. Several years later, there were actually three American Indians sitting in the same section, so apparently they violated the one Indian rule that my former deputy chief thought existed.

WAS: What’s the state of the division at this point?

LB: Ultimately the division does at one point have as many as six Native attorneys and throughout the department in the offices, boards, and divisions in Washington, D.C., we have as many as twenty-two and, of course, the Native American Lawyers Association at the DOJ for its first decade met in my office because we only needed three other chairs, but we actually had to get a conference room by the year 2000. That group continues today.

WAS: And I believe that, now, the Obama administration has formalized the Office of Tribal Justice?

LB: The attorney general, this last budget year, did formalize that office. Everybody there was on detail from some other unit—even the director was on detail from the Montana U.S. Attorney’s Office—and so it could be disbanded in a hot minute. But this administration and Eric Holder have made the decision that it’s important and that it needs to be permanent so all of the people that were formally on detail are now full time under that office.

WAS: As I mentioned, this issue of the magazine is going to focus on voting rights, so let’s talk about the voting rights cases.

LB: Early on in my career I was very lucky in finding cases of great import for the voting rights of Indians. Initially two of them came up within the same election cycle. I discovered in covering elections in South Dakota that a young man who had lived on the Sioux Reservation had come in to file a petition to run for county commissioner and was told, “You’re an Indian. You live on a reservation. You can’t run for office.” He does not file a complaint. He probably doesn’t believe he has any rights. But when I find out about it, the Department of Justice takes umbrage and allows him to file an action trying to hold the elections from going forward until he and other Indians have a chance to run for office. We got a hearing date. I’m at the U.S. attorney’s office going over my notes. I have been out of law school for a minute and a half and a member of the bar for less than sixty seconds. I’m nervous. The U.S. attorney comes running into the office and says, “Oh my God, the judge just called. He saw your papers and is on his way and is not happy.” The judge appears. He’s the size of a small mountain with a housing project for a head and his finger, the size of a school bus, is in my face and he says, “Boy, are you Baca? Boy, I saw them papers you filed and boy, we don’t have a problem with our Indians here and you people from Washington come stir them up. Boy, talk about discrimination in my courtroom I’m gonna chew you up and spit you out.” Indian culture being what it is, I dropped my head, looked at my bootsj and said, “Thank you, your honor.” I went in prepared to lose. The next day I was the only Native in the courtroom. But Frank, he knew there was a Native attorney helping him try to get his right to run for office. As you might imagine, I lost. The judge ruled it was okay to tell Frank he couldn’t run for office. Nine months later the appellate court overturned it.

WAS: Tell me about the second case.

LB: During the same time period, I was also monitoring elections in Arizona. An Indian walks up to me on a Navajo reservation and says, “Hi. Are you from the federal government? Why weren’t you guys here last week when the bond election occurred?” I didn’t know anything about a bond election. According to him, the school district had passed a bond election that would eat up all of the bond money in the county for twenty years to build new schools in the southern portion of the county. Well, that county is 271 miles long, 200 miles of it are on the Navajo Indian Reservation, and seventy-one are off-reservation populated almost exclusively by non-Indians. So one-third of the voters had twice the opportunity to get to the polling place. A lot of information was in English and some in Spanish. The federal Voting Rights Act provides if there is a large language group with a low voter turnout in the last presidential election, you might be covered to put out voting information in that language. Well, theirs was only for Spanish—but in Castilian, which nobody in Arizona speaks because they’re largely from Mexico and South America. At one point when I was doing discovery, I discovered a Navajo man that was a translator at the polling place, whose job was to go into the polling booth with you and read the ballot and tell you in Navajo what the ballot said in English, couldn’t read English, nor had he ever been told what the election was about.

The state and county had to submit an election plan to the Department of Justice. They did so, and the voting section actually approved the election plan I just described. The election goes forward. Under Arizona law you can’t submit your plan to the Department until within thirty days of the election. Under the federal statute, the attorney general has sixty days to accept or reject your election. So at the time this gentleman was explaining to me about the election, it had been approved, but the attorney general still had about fourteen days to take it back. I conducted a super fast investigation to prove the election shouldn’t have been approved. The attorney general then sent a letter to the school withdrawing our previous approval.

WAS: So now the district still had a bond election on the one hand and the attorney general’s disapproval on the other—what did they do?

LB: They sued the attorney general in Washington to overturn the decision to not approve the election. We spent eighteen months in discovery. I found an audiotape of a school board meeting where someone I believe to be the school board chairman is saying to the audience, “we have to get this election through before the Navajos find out about it.” Somebody in the audience says, “Why are we worried about that?” And he says, “Well, you know they took over the county government last year and the next thing they’re going to take over is the school board.” The voice in the audience says, “Well, why should we be worried about it?” He says, “Well, they’re going to start doing to our kids what we’ve been doing to their kids for twenty years.” The voice in the audience says, “Well, why should we be concerned if they’re going to do something Native to our kids?” The booming voice next to the microphone says, “Because you’re white and they’re not.”

In the process, we argued about what information needed to be provided to Navajos; the Voting Rights Act provides that you must provide information in the appropriate language and it must be provided even orally if it’s a language of a group whose language is historically unwritten. All American Indian languages are historically unwritten. There’s no other language group that it would apply to that has a historically unwritten language. So a three-judge court in Washington, D.C., held you must provide a comparable amount of election information orally in the Navajo language, on the radio and on the television, and you must have a translator at the polling place who can read English and who can translate it into the Navajo language or have it all professionally translated and then have a Navajo speaker who can read Navajo. That case, thirty years later, is still the leading decision on the voting rights of Indians under the language portion of the Voting Rights Act.

WAS: We talked about Meyers yesterday, but let’s mention another case of particular personal significance to you.

LB: Well, obviously Meyers because it’s a written opinion and then because Eric Swanson pointed out its great significance as being the first federal court that ever ruled that American Indians have a right to equal education opportunity under the Fourteenth Amendment. He said, “Oh my God, this is the Brown v. Board of Indian country.”

The Great Western Bank case comes about because a Navajo woman who has a ninety-nine-year lease on a plot of land on amortization wants to borrow money to build a house and the bank tells her (1) you live on a reservation so we can’t loan you money and (2) we don’t accept leases as security—neither of which is true. If you look at the bank’s records, they accept leases if they are in Phoenix; they just don’t accept leases if they are outside. So, the Navajo woman is married to an attorney who is a member of the Navajo Legal Services. They file a complaint with HUD, HUD goes through its administrative process, and the bank says no, we’re not going to do it. The federal office in San Francisco had people in it who knew my work. They called me and said, “What’s up? Is that true?” I told them no. We started an investigation as soon as the HUD people told me that they were not going to settle. They said it’s very ugly, it’s acrimonious, it’s not going to settle. We filed a lawsuit against the bank the same day the settlement failed and engaged in eighteen months or more of discovery. I visited all twenty-seven of the bank’s branches, took depositions, and looked at records. At one point, I had a team of six attorneys and paralegals working with me and copying records. The case settles.

WAS: You have a reputation, don’t you, for never having taken a case to trial?

LB: The reason I had never taken the case to trial was because the United States moves really conservatively and all the branches bring cases we know we can win, but in this case we actually got almost to trial. Trial was supposed to start on Monday. On Friday the court made a ruling on evidence I wanted in and the bank didn’t. The judge ruled in my favor and the attorneys, while they stomped out Friday, called us over the weekend and said if you will come into our offices we think we can reach a settlement. So the case did settle.

WAS: Then, though, didn’t the prosecution extend to other, nonhousing, lending?

LB: Part of the investigatory process was to find out where else you could not get a loan. Housing was a part of it, but there were lots of other loans people want. So I interviewed all the car dealers along the reservation border. One of them called me after seeing the news about the settlement in the paper and said, “Hey, if you really want to look at the big dog, we won’t make loans to Indians or offer different terms or conditions, and that’s GMAC.” At the time, they were the largest finance company in the world. We investigated GMAC and discovered that if you were an Anglo living in Phoenix, you could put ten percent down and get a car loan for thirty-six months. If you were an Indian living on the reservation you had to put thirty percent down and you only got twenty-four months. The theory was Indians drive their cars really hard on rural roads and that when the car breaks down they stop making payments because they don’t believe they have to pay for a car that doesn’t run. None of the above is true. When we started the investigation with GMAC, they cooperated. I am sure Mr. Smith, who was at that time GMAC president, had told his attorneys to settle this matter, we don’t want to get into a lawsuit with the United States. So we entered into a very good settlement for a couple of years after that. Lots of Indians got lots of loans and you saw on every GMAC ad across the bottom, “Equal Opportunity Lender,” and my telephone number if you have a problem getting a loan from them.

WAS: That, then, really got the message out?

LB: Because it’s GMAC, it’s the thunderbolt that goes through the national lending community. When we started engaging in negotiations and ultimate settlement with one bank, the other six saw the handwriting on the wall. So, with a single settlement action, we resolved the problems with the seven banks and what I recommended in this and the assistant attorney general agreed—we don’t need to sue the others . . . they know. Everybody on the reservation has our phone number now anyways. That body of work leads to an article about credit in Indian country with a headline that says, “Larry Baca—Grandfather of Indian Country Credit,” and this legend develops about my work in Indian country.

WAS: Let’s talk about your award. I met Justice Marshall when I was on the IRR Counsel and we developed the concept for the dinner and award and it was profound because he had been an inspiration to me in my career; I imagine he was at least as inspirational to you.

LB: Absolutely. First of all, a towering figure in civil rights and for any young boy of color to see someone of his stature do the work he did, develop the tremendous career he did, you know as you grow up that his work is a straight line to the opportunities you have. I got to go to desegregated schools, and to an important law school—all because those doors had been opened. He laid a foundation and created a path, clearly for the rest of us to follow. It is humbling to receive an award with his name attached to it. So, to stand there come August and receive an award with his name, I want you and everyone else to know in advance, bring tissues, because I’m gonna need ’em. It’s emotional. Even now, I look at the list of other people who’ve received it and y’all have planted me among the tall trees. He was also one of the leading writers on the court in federal Indian law. For a decade or more when you saw Supreme Court opinion coming down on federal Indian law, you knew if Justice Rehnquist was writing the opinion, it was against the interest of Indians; if Justice Marshall was writing the opinion, it was in favor of the Indians. And, with Santa Clara Pueblo v. Martinez, the Supreme Court stamps into the highest law that Indian tribes had the absolute right to decide their membership. Secondly, he again forms the principle that tribes are immune from suit because they’re sovereigns. Those two things—the ability to actually control your membership and the ability to not be sued in any court without your permission because you’re a sovereign—are just monumental principles of federal Indian law and they came off the pen of Justice Marshall. So, his effect on my life, personally, is immense because I found that, as I said, there’s a straight line from his work to the opportunities I had, and, as a practitioner and watching the development of federal Indian law over my career, I saw his immense effect on the lives of all Indians through his writings in federal Indian law.

WAS: Let’s end with what you told me yesterday, about the power of working, in every sense of the word, for “Justice.”

LB: When I first went to Washington, D.C., there was this hierarchy among lawyers: if you don’t work for a big law firm, you don’t count. Generally, if you worked for the government, you didn’t count, except if you worked for the Department of Justice. It was considered the one legal organization of government lawyers who were equal to the private bar. At Justice, we always say, you know how to answer when asked, “Where do you work?” I work for justice. When you walk into federal court as a civil rights lawyer, you tell the judge your name and then you speak the five most powerful words in civil rights enforcement, “I represent the United States.” In the Great Hall, when we talk about our work, where we work is what we do because I work for justice.

Wilson Adam Schooley is a certified appellate specialist and trial lawyer with Sullivan Hill Lewin Rez & Engel in San Diego. He has been active in bar leadership locally and with the ABA, in various divisions and sections including IRR, for many years, and is also a professional actor, adjunct law professor, and published photographer

 

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