July 09, 2020 Feature
Walking in Beauty in the Law
A former solicitor for the U.S. Department of the Interior describes how her growing sense of self has made her a better lawyer.
by Hilary C. Tompkins
As lawyers, we often assume a persona or style in our work to be an effective advocate on behalf of our client. I have been practicing for more than two decades, and over the years, I have changed my style based on who I was working for, what seemed to be effective, and, lastly, my sense of self. I have come to believe that the last category is the most important one. The more I developed a stronger sense of self, the better I became as a legal advocate. I have an unconventional background that at times made me feel unsure of who I was and where I was headed, but with the passage of time, it became a source of strength in my practice of law. This is my story.
To set the stage, it helps to understand a little bit about the Navajo Nation Bar Association, the organization that oversees the licensing of practitioners who appear before the Navajo Nation courts—the Nation’s vast judicial system that consists of 11 districts spanning three states (New Mexico, Arizona, and Utah) and a supreme court. The bar association administers a semiannual bar exam that contains questions about not only western Anglo law but also Navajo traditional law. Both tribal members and nonmembers are licensed in the Navajo courts, and I was fortunate to become a member back in 1992, shortly after I graduated from college. If you are an enrolled member of the Nation, you can take the bar exam and practice in the Navajo courts without a law degree in the position of a “tribal court advocate.” I served in that capacity, working for the Navajo Nation Department of Justice. It was life changing and inspired me to attend law school.
For me, becoming a tribal court advocate was not just a good career move; it also helped fill a void I had in my life up to that time. A common refrain among Indian law practitioners is that the life of a Native American is more directly affected by federal law and policy than that of any other American citizen. My life was no exception. Some of you may have heard the stories about the relocation program during the 1950s that moved Native Americans from reservations to urban areas to obtain jobs in the hopes of integrating them into mainstream society, or the boarding school era when thousands of Native children were sent away to schools where they were assimilated and disconnected from their families and tribes. Another program in the 1960s and ’70s was the American Indian Adoption Project, where Native children were placed for adoption with non-Native families off the reservation. I am a product of this project.
I was born in Zuni, New Mexico, in the late 1960s to a Navajo mother and was placed in a foster home in Gallup for a few months before I was sent to my new family in the Midwest. My adoption paperwork shows the letters between the Department of the Interior and private adoption agencies making arrangements for my placement in a non-Native family. My family moved to southern New Jersey when I was a toddler, and that is where I grew up, right outside of Atlantic City. While I had loving parents and a typical suburban upbringing, it was nonetheless a very difficult experience for me. The short version is I felt like a fish out of water, with no one that looked like me and no family members who could understand what it felt like to be so different. I knew I was Navajo, and my parents did the best they could to give me information about my tribe, but that alone was not enough to give me a strong foundation and sense of pride in my Native identity. Luckily, I focused my energy on school and had the incredible good fortune to be accepted by Dartmouth College, which had a Native American student recruitment program based on its charter.
Returning to the Navajo Nation
Attending Dartmouth connected me with many Native American students and eventually facilitated my return to the Navajo reservation to work for the Navajo Nation Department of Justice. I will never forget my first trip back to my birthplace. I was enthralled and emotional when I drove on Interstate 40 from Albuquerque to Gallup, New Mexico, and began to enter “Indian Country.” I nearly drove off the road when I realized all the cars that passed me had Native Americans in them. I was completely blown away when I went into the McDonald’s in Grants, New Mexico, and saw people who looked like me everywhere, ordering french fries and Big Macs—my favorite order. I never had been in a place where I was surrounded by other Native Americans. It took me a few days to adjust and stop staring at everyone.
I also had culture shock as I had just moved from my law firm job in New York City. I was comfortable in big cities like New York and Philadelphia, with lots of people, noise, and the fast pace. When I moved to Window Rock, Arizona, the capital of the Navajo Nation, I didn’t know that I needed a car and rode my bike everywhere at first, with Navajos honking at me from their pickup trucks like I was a fish out of water—again! I tried my best to adapt quickly, though, and with the long, open days and the wide-open spaces, I bought a car, learned how to change its oil, took up country line dancing, and herded sheep—only once, because I lost the herd. That’s another story.
My return to the reservation was exciting, daunting, and difficult. I was a member of my tribe, but I didn’t speak the language or know the culture. I could not follow the most important and basic rule of Navajo etiquette, which is to state your clans in Navajo when you meet another Navajo. It became a daily reminder that I didn’t fit in once again. I had hard moments where I felt like I didn’t belong anywhere. Then a new door opened through the law.
After I had built some solid relationships with my coworkers at the Navajo Nation Department of Justice, they began to teach me about Navajo traditional law. I learned about our origin stories, the principles of life, the interconnected nature of the world, the importance of clanship, and the symbolism in our traditional dress. I participated in traditional ceremonies. All of these components originated from Navajo common law. I learned on a deeper level what it means when Navajos say “walk in beauty,” where every person strives to achieve harmony in life. The concept is called “hozho,” when your inner peace way and war way are in balance. These were the fundamental rules of Navajo society, which was vital to know if I was practicing in Navajo courts, but also essential to know as a Navajo person.
Armed with my tribe’s legal knowledge, I went on to law school; reconnected with my birth family; integrated Navajo ceremonies into my life, including a traditional Navajo wedding; and provided my daughters with life-stage ceremonies that I never had in mine. I also gained the most critical piece of information that had been missing. When I reconnected with my birth family, the first question I asked was “what’s our clan?” I am born to the salt clan (Ashiihi) and I can now introduce myself in Navajo and say the four clans on my maternal and paternal sides. I finally was filling that void in my soul and “walking in beauty” because I had learned my tribe’s fundamental laws.
Having this foundation in my tribe’s law prepared me for my career in the mainstream legal world. I went on to work on behalf of governments, starting with the U.S. Department of Justice, then representing Indian tribes, and serving as chief counsel for New Mexico Governor Bill Richardson. After those amazing experiences, I was offered a legal job of a lifetime. Secretary Ken Salazar of the U.S. Department of the Interior offered me the position of solicitor of the U.S. Department of the Interior, which required a presidential nomination and confirmation by the Senate. I never imagined that one day I would be representing the very institution that had such a critical role in Indian affairs nationally, let alone the agency that facilitated my adoption. I was honored and humbled and felt the weight to perform well as I wanted to show American society that Native Americans are just as qualified to serve in high-level positions.
The Cobell Tribal Trust Litigation
Before I decided to take the position, I was told by multiple Natives that I shouldn’t assume this role because of the Cobell tribal trust litigation and that I would “never work in Indian Country again.” The Cobell case is believed to be the largest class action suit filed against the United States. Over 500,000 individual tribal members had sued the U.S. Department of the Interior for breach of trust claims and mismanagement of tribal trust accounts, such as for failure to collect and account for oil and gas royalties on Indian allotted lands. The case had been through scorched-earth litigation for over a decade at the time the Obama administration started its first term. While the words of caution from my community were well intentioned, they had the opposite effect on me. My background set the stage for me to take this case head-on. I was a Native attorney but also wise in the ways of non-Native, governmental thinking. I had already served in a high-level position for a state governor, where I balanced my role between shaping Indian affairs policies, based on my experiences as a Native person, with serving as a state official at the behest of the public at large. I was gradually discovering that my unique background was a source of strength in my lawyering and not a limitation.
In the first six months in my role as solicitor, I was entirely focused on settling Cobell, at the direction of President Obama and Secretary Salazar. The plaintiffs’ team was headed by a fellow Native law practitioner whom I had known for years and we had a good rapport, which was invaluable. Elouise Cobell was the lead plaintiff, a Blackfeet woman from Montana. In our sessions, I was impressed that two Native women were in lead roles on opposing sides of the negotiation table. I recall one impactful moment in the federal courthouse in the D.C. district court. We were all sitting in a conference room, with our fantastic mediator, Judge James Robertson, flanked on both sides by male lawyers in dark blue suits. I had just returned from a visit to the Navajo Nation with Secretary Salazar; while there I had seen my old friends from the Navajo law community, including paying a visit to the Window Rock District Court and hearing an update on their peacemaking tribunal. Back in Washington, D.C., at the settlement table, the judge asked both sides to give opening remarks. When it was my turn, I spoke to Elouise directly and talked about how I understood why she felt she had to use this legal system in federal court to get justice for her people, but that we needed to bring our traditional ways into this courthouse to help us heal and find peace. I felt a strong connection with her when I spoke these words and I feel like it built some trust, which had been historically lacking up to that point. We eventually settled the case for $3.4 billion, which required congressional approval to allow for monetary damages. The settlement also included the establishment of the Cobell Scholarship, which supports Native American students seeking higher-education degrees.
The settlement was historic and a cause for celebration, but it was also a bitter pill to swallow for some of the lawyers at Interior who had felt the brunt of the courtroom battles. I shared with them the Navajo concept of hozho, that it is important to fight and be in your war way to defend yourself, but it is equally important, and more often harder, to resolve disputes by engaging your peace way. I was bringing the Navajo part of me to my lawyering and sharing it with my colleagues for their toolbox, with the option for them to use it or not.
I also had tough moments in my role as solicitor, given the nature of lawyering in a politically intense environment. I was fortunate to have a Navajo medicine man visit me in my Washington, D.C., office and I told him of my struggles, that I felt like I was constantly in war way mode to protect myself in this tough job. He shared with me the wisest of words, which I carry with me to this day. He said, much more eloquently than I am recalling here, “Hilary, you can’t get hozho and in balance with your peace way without going through suffering and pain on your war way side.” In other words, that beautiful sense of achieving harmony took hard work. After that session, I had a better understanding that to find peace in my role, I needed to pull from all my teachings throughout life, both Navajo and from growing up in Jersey. I not only could draw strength from my Navajo side, but I was also a tough “Jersey girl” who could weather the Washington, D.C., scene. I blended the two parts of me to more effectively communicate both internally and externally with various audiences. I could be blunt and direct (Jersey) or patient and in listening mode (Navajo). I could be sympathetic with the “outsider” point of view (adoptee) and loyal to the institution of Interior and its unique culture (tribal membership). Those varied skills were vital to my being an effective lawyer. I learned that being an expert in an area of law is one thing, but understanding how to build meaningful connections with others is equally important.
I served in the role of solicitor for nearly the full eight years of the Obama administration. During my tenure, my amazing team at Interior settled over 90 other tribal trust cases filed by Indian tribes against Interior, reaching settlement payments of at least $6 billion. I concluded my tenure with the toughest legal matter I had faced since the Cobell tribal trust litigation—the Dakota Access Pipeline dispute with the Standing Rock Sioux Tribe. This challenging litigation was my final test before I walked out the door of Interior, requiring me to be a strong voice for my people while fulfilling my role as chief counsel for a federal agency.
The Dakota Access Pipeline Dispute
The short version is the Obama administration was defending the U.S. Army Corps of Engineers’ authorization of the pipeline located half a mile north of the Standing Rock Sioux Reservation in North Dakota. The tribe filed suit claiming violations of the National Historic Preservation Act and the National Environmental Policy Act (NEPA), among other claims. The U.S. Army Corps of Engineers had just prevailed in its opposition to the Tribe’s motion for a preliminary injunction when Interior became involved. The Obama administration ultimately placed a hold on the project to allow for more environmental review—a decision that the Trump administration has reversed, and the matter continues to be in litigation. I authored an M-opinion (which is a document that the solicitor can issue to proclaim the official legal position of Interior), which concluded that the U.S. Army Corps of Engineers’ NEPA analysis was deficient for not analyzing the potential impact of the pipeline on the tribe’s downstream treaty and water rights. Ultimately, the D.C. district court judge agreed with the gist of my opinion and remanded the case back to the U.S. Army Corps of Engineers for further NEPA review.
During those tense, deliberative months in the fall of 2016, I called upon all my legal training, but also my experiences as a Native American in this country. I explained to my federal colleagues that the unprecedented level of Native American protests was not just about the pipeline; it reflected a deeper and unresolved angst and sense of injustice that had been brewing for not just decades but hundreds of years. The pipeline was the proverbial straw that broke the camel’s back. I also brought my Indian law expertise to the table. At the same time, I was sensitive to the fact that the United States was in litigation in a defensive posture. In the end, the Obama administration’s decision to temporarily halt the project to allow for more fulsome NEPA review was the embodiment of striking a balance. The government never conceded legal error in the litigation but, in its role as trustee, concluded it was important to provide time to review the tribe’s unique legal interests at play. With this decision in place, the protestors went home for the winter, and I left the Interior Department in January 2017.
It has been a long journey to find my sense of self. My removal from my tribe as a baby left me with a profound sense of loss, but I was fortunate to be able to regain some of what I lost. I am grateful that many members of the Navajo Nation Bar Association had taken me in upon my return to the reservation in the early 1990s and taught me traditional Navajo law. I was able to thank them for preserving our traditions and passing on our legal knowledge and tell them in person that it saved me from a life of disharmony. Because of my life journey, from my birthplace in Indian country to New Jersey and back again, I now walk in beauty as a warrior and a peacemaker.