A Lawyer in Indian Country

A Memoir

Alvin J. Ziontz

• Publisher: University of Washington Press
• Year: 2011
• ISBN:
  9780295800202
• Topic: Law
• Subtopic: Law Biographies
• Index: Law

In his memoir, Alvin Ziontz reflects on his more than thirty years representing Indian tribes, from a time when Indian law was little known through landmark battles that upheld tribal sovereignty. He discusses the growth and maturation of tribal government and the underlying tensions between Indian society and the non-Indian world. A Lawyer in Indian Country presents vignettes of reservation life and recounts some of the memorable legal cases that illustrate the challenges faced by individual Indians and tribes. As the senior attorney arguing U.S. v. Washington, Ziontz was a party to the historic 1974 Boldt decision that affirmed the Pacific Northwest tribes' treaty fishing rights, with ramifications for tribal rights nationwide. His work took him to reservations in Montana, Wyoming, and Minnesota, as well as Washington and Alaska, and he describes not only the work of a tribal attorney but also his personal entry into the life of Indian country. Ziontz continued to fight for tribal rights into the late 1990s, as the Makah tribe of Washington sought to resume its traditional whale hunts. Throughout his book, Ziontz traces his own path through this public history - one man's pursuit of a life built around the principles of integrity and justice.

ONE

The Road to Neah Bay

NOVEMBER IS A DARK, RAINY MONTH ON THE PACIFIC COAST OF Washington State. The light was already fading and rain was falling intermittently this late-fall night as I drove west to Neah Bay. It was 1963 and I was on my way to a meeting with the tribal council of the Makah Tribe, thinking about the possibility of becoming the tribe's attorney. It was a call from the tribe's young executive director, a Makah named Bruce Wilkie, that brought me to travel the road to Neah Bay that night. He had asked if I might be interested in being the tribe's attorney. It was an exciting prospect and of course I immediately said yes. I would be interviewed by the tribe's governing body, the tribal council. Now my mind was turning over what I might say—this could be an important new client, but I had never met with a tribal council and I was feeling apprehensive. The meeting was set for eight in the evening and I wasn't even sure I could find the council office.

Neah Bay is the home of the Makah Indian people. It was then a village of about six hundred Makahs (now more), at the farthest northwest tip of the continental United States. From Seattle you cross Puget Sound by ferry and drive west to Port Angeles. Out of Port Angeles you turn onto Highway 112, which soon becomes a treacherous two-lane road, twisting along the coast of the Olympic Peninsula. In many places it skirts the cliffs rising out of the Strait of Juan de Fuca and runs alongside dense forests. That night in the steady drizzle, following the hairpin curves took all my concentration, leaving little time to worry about what I was going to say to the council.

I was thirty-five years old and had been a practicing lawyer in Seattle for nine years. Bruce Wilkie and I had met six years before when he was a high-school student. I had prosecuted several cases successfully for members of his family when he came to see me concerning a used car he had bought. The car had serious mechanical defects and the dealer refused to make repairs or refund Bruce's money, claiming Bruce had bought it “as is.” It was a simple matter to write the dealer advising him that Bruce was a minor when he bought the car. Since no parent had signed the purchase contract, I demanded that the dealer rescind the contract and return Bruce's money. The money was returned. Afterward, Bruce and I talked about Indians and their treatment in America, a subject about which Bruce was passionate.

Bruce's appearance was striking. He had a large, bulky body and his face, though very round with full cheeks, was handsome. His presence was imposing and he spoke with a gravity and thoughtfulness unusual for a seventeen-year-old. We spoke about the Makah Tribe and his desire to return to the reservation to work for the tribe. As we talked, his resentment over the injustices Indians had suffered dominated the conversation. I told him what I had learned about tribal sovereignty from reading Indian cases and what I understood about the nature of sovereignty. He was deeply interested in my comments and we seemed to establish a comfortable rapport.

During the next six years I had no contact with Bruce at all, so his call took me by surprise. But I remembered him immediately. Since we last talked, Bruce had graduated from college and then traveled, even going to France and giving a talk at the Sorbonne. After knocking around for a while, he finally did go back to the reservation at Neah Bay. The tribal council was looking for someone to run the day-to-day business of the tribe—to be their executive director—and he was hired.

“I'll tell you why I'm calling,” he said. “You know I've always felt the Makahs were getting a raw deal. Their treaty rights mean nothing to the state. A lot of us younger Indians around the country feel it's time to kick ass. Our council is no different than other tribal councils. They're all afraid to stand up to the white man, to the state. Instead, they turn to the Bureau of Indian Affairs and expect them to defend their rights. Well, that's useless.”

Then he told me the council was unhappy with their tribal attorney and they wanted to replace him. Two firms were under consideration, one in Port Angeles and another in Seattle, but, Bruce said, “I remembered the work you did with my family, and I've heard about your work with the American Civil Liberties Union and I'd like to nominate you. Would you be interested?”

My three-man firm had barely been in existence a year and we were struggling to pay the bills. Every new client was important. But an Indian tribe was not a run of the mill client; it was a category of client that few lawyers encountered. Of course I was interested.

After what seemed an endless series of sharp curves, the road finally ran straight and I entered the Makah Indian Reservation. Night had fallen and it was still raining. I strained to make out the buildings as I drove through the village. The street ran along the oceanfront, but most of the buildings were on the landward side. I was looking hard for any building with a sign on it. At last I spotted it—a small white cottage with a sign that read, “Makah Tribal Office.”

I walked up a short flight of steps and entered the building. Inside was a single room, dominated by a large table with a plate-glass top covering a map of the reservation. Seated around the table were five men and Bruce. They stood up and Bruce introduced me to each, one by one. First was a short, bald-headed man who shook my hand with a friendly smile. “This is Quentin Markishtum, our chairman,” said Bruce. “They call me Squint,” Quentin said good-humoredly. Then, Charlie Peterson, middle-aged with a serious face and piercing dark eyes, and David Parker. “Call me Ty,” he said with a grin. A tall man with a deep resonant voice came next, Hillary Irving. “They call me Zab,” he smiled. And finally a youngish looking man with a pleasant manner, Joe Lawrence Jr., whom I later learned was called Bobe. Seated at a small desk in the rear was a young woman with a pad of paper, seemingly poised to take notes.

Bruce began. “Al, the council wanted to meet you, so just go ahead and tell them anything you want.” I gathered my thoughts.

“Well,” I said, “I've never done any legal work for a tribe and I am not an expert in Indian law. But I did do some work for the Wilkies, Bruce's family, several years ago, and that's when I studied the law pertaining to Indians. I discovered something important—under the law Indian tribes are sovereign. I know something about sovereignty because I studied it in college and again after law school. It seems to me that this principle of Indian law can be a powerful tool. I know only a little about Indian affairs, but from what I've read it doesn't look like state governments have shown much respect for tribal sovereignty. If I were representing the Makah Tribe, the principle of tribal sovereignty would be the way I would go about defending your rights.”

Then I told the council something about myself;

“I came to the Pacific Northwest in 1954, after I was discharged from the army. My legal career started in a small law office in West Seattle, and that's where I met the Wilkies and Bruce. During the past nine years I have built up my knowledge by representing people in all kinds of cases. I have gone to court, presented cases in jury trials, and argued cases in the Washington Supreme Court and the U.S. Ninth Circuit Court of Appeals. I have always felt strongly about injustice and so I joined the American Civil Liberties Union. I believe in the protection of rights, human rights and constitutional rights. I would be proud to represent the Makah Tribe.”

The council members listened respectfully. Then, one by one, each spoke of the Makahs' need to be able to fish, as they believed they had a right to do under their treaty with the United States. Again and again I heard their expressions of tension with the state of Washington.

This was news to me. I had lived in Washington for ten years and thought of it as an enlightened and tolerant place. I learned then and later that this was only a partial truth. There was indeed racial prejudice in the state, and state government held to a philosophy that Indians must eventually be brought under state laws. Like most Washingtonians of the time, I knew next to nothing about the local tribes. If I ever read anything about them in the newspapers, it was usually a small article in the sports section headed “Indian Poachers Arrested,” describing some Indians seized for fishing in violation of state law. Sometimes the article mentioned in passing that the Indians claimed a right to fish “under some old treaty.” Usually the Indians were convicted and given jail sentences. To the average reader, the Indian fishermen appeared guilty of endangering conservation, and the claim to fishing rights “under some old treaty” seemed specious. It would take ten more years of struggle on the rivers and in the courts before that “old treaty” was given the respect it deserved.

My meeting with the council was over in about an hour. The councilmen had been polite and friendly, but I had no idea what they would decide. I drove back to Seattle excited by my experience—it had been nothing like I'd expected. Meeting the council had been stimulating, but I thought it unlikely that they would retain my firm. We were tiny and had no background in Indian law. So I was surprised when three days later Bruce called and told me that they had voted to hire us.

This one meeting with the Makahs changed my life. For the next thirty years, I was immersed in the problems of American Indian tribes. My three-man law firm grew to fourteen, and we were retained by other tribes in Washington as well as in Montana, Wyoming, South Dakota, Minnesota, Nevada, California, and Alaska. I was to travel the road to Neah Bay hundreds of times, and my life and the life of the Makahs would become closely intertwined.

TWO

The Road to Neah Bay Begins in Chicago

I WAS BORN AND RAISED IN CHICAGO. MY MOTHER AND FATHER came to America from Russia before the First World War, among the flood of Jews leaving that country to look for a better life and freedom from persecution. Ultimately, both settled in Chicago. My mother, Rose Bolasny (later changed to Block), left behind her entire family—parents, three sisters, and two brothers. She apprenticed as a seamstress when she was a teenager, and once in America she employed her skills making fashionable women's dresses. After marriage, she settled into life as a homemaker.

Mom observed all the customs and traditions of Orthodox Judaism, but Harry Ziontz, my dad, totally rejected them. To him they represented an archaic, benighted way of life that he associated with the primitive conditions of the Russian shtetl, or little village. He had the equivalent of a fourth-grade education, but he had taught himself to read and he read the English and Yiddish newspapers.

Every day he went to the tavern he owned in a Chicago working-class neighborhood. He embraced America and modernity: cars, radio, skyscrapers, sports. And he idolized Franklin D. Roosevelt. He admired Roosevelt's wit and loved to listen to the president's speeches on the radio. He would shake his head in admiration: “He can hold a speech.”

Until I was five, we lived in a predominantly Jewish neighborhood and my Jewishness was unselfconscious. My parents spoke Yiddish at home and I, of course, understood them. It was the language of our relatives and family friends. The Jewish holidays were part of our lives. But then we moved so my father could be near his tavern, and the new neighborhood was entirely Gentile. When I started elementary school, I suddenly became aware of my “otherness,” and I soon experienced the world as hostile. After incidents of name calling and harassment, I became apprehensive. Every strange boy approaching me seemed a threat.

Derogatory names for Jews were in common usage in America during the 1930s, and as I grew older I heard them from otherwise nice people. You never knew when one of these epithets would pop up casually in conversation: “I Jewed him down.” “He's as cheap as a Jew.” “Look at those kikes.” And if such comments were uttered in my presence, I faced the dilemma of either announcing my membership in the despised class or swallowing my self-respect and remaining silent.

The question of my Jewishness inevitably arose whenever I had to tell someone my name was Ziontz. “What nationality is that?” came the typical response. I knew what that meant. Sometimes I would say “Russian,” sometimes “Jewish.” This constant awareness of my separateness, of being a member of a disparaged minority in America, I believe, was responsible for the powerful empathy I later felt toward Indian people. But as a child I experienced my Jewishness as a liability, and it remained that way until well into adulthood.

Growing up, the most important figure in my life was my father. He was just over five feet tall and people called him “Little Harry.” But he was well muscled and self-confident. He was like no other father, I thought—affectionate, even soft-hearted, and he was a self-made man. Coming to America at the age of twelve and going to work as a hawker plying the trains between Detroit and Chicago, selling sandwiches and candy, and later, loading sacks of vegetables on peddlers' wagons, gave him enormous self-reliance. Still later, he took a horse and wagon into the countryside of Michigan, buying scrap metal from farmers. Meeting America face-to-face gave him an easy manner with everyone he met. Eventually he moved to Chicago, and after a stint as a bootlegger he gravitated to the tavern business when Prohibition ended.

His tavern was his whole life and formed a backdrop to my childhood. He was there every day from ten or eleven in the morning till closing; one in the morning on weekdays and two on Saturdays. I loved talking with him. He seemed to know about everything, and he was curious about even more. He had a way of challenging questionable statements, rubbing his chin and delivering a drawn-out, “Well, I don't know.” He called me Sonny, changing to Alvin only when I got older. I walked over to the tavern to spend time with him two or three times a week. Sometimes I carried his dinner over in a shopping bag. His face always brightened when I came in.

A long bar ran along one side of the tavern, with a plywood partition separating the front of the tavern from the rear, where there were booths. Usually there was a single bartender working, but sometimes Dad worked alone behind the bar. Early on, I started going behind the bar with him, and sometimes he let me draw a beer from the tap for a customer. To the customers, I was “Harry's kid” and they accepted my presence. They were working men, employed in nearby factories or in the Chicago and North Western railroad yards. They sat at the bar, sipping beer or downing a shot and talking about life and work, or offering anecdotes for amusement or confirmation of accepted truths.

These men seemed to hold my dad in their affection. No matter what he called his tavern—and it went by several names over the years—to the customers it was always “Harry's.” Dad also had a way of diffusing tension. “Tom, you've had enough,” he would say. Occasionally, the man would become angry, but my father always seemed able to tactfully persuade him to leave. There were some incidents of violence. Usually I heard about these at home, listening in on conversations between my parents. But once I was in the tavern when two big, brawny guys got into a violent argument. One minute there was just the sound of raised voices; the next, the two men were swinging at each other. With amazing swiftness, my dad ran out from behind the bar and intervened. The sight of my father, barely five feet two inches tall, struggling and grappling with these big men, sent a flash of fear through me. Yet he was bold and strong enough to halt the melee. I think the respect he commanded induced the men to stop their fighting.

The tavern also taught me important lessons about racial tolerance and kindness. For Dad, the issue of bigotry toward black people was one of compassion. “Give the man a break,” was the way he usually phrased it. We didn't often see black people. They lived almost exclusively on the South Side of Chicago and it was rare for a black man to come into the tavern. But occasionally one or two did. One of them, a man named Henry, got caught up in a tragic chain of circumstances. He had gone over to the dice table where two white men were playing and asked if he could get in the game. They ordered him away using an ugly epithet. Henry got belligerent and an argument started. My dad, sensing trouble, quickly intervened and asked Henry to leave to avoid a fracas. “Okay, Harry,” the man said, “I'm going,” and he left. But he walked to the nearby factory where he worked, went to his locker, got a pistol, and returned to confront the two men. Words were exchanged, and Henry shot one of them. Henry ran out of the tavern, but the police soon found him. His victim died and Henry was sentenced to a long term in the state penitentiary.

The killing meant serious trouble for my father. His license could be revoked over an incident like this. But he was also troubled for another reason. Henry, he felt, had been mistreated by those men in his tavern, and he felt deep sympathy toward him for what had happened. My father drove to the state prison in Joliet to visit Henry, who was happy to see him. He told Dad that he had sore feet and could sure use a comfortable pair of shoes. Two weeks later, my father returned to Joliet, bringing Henry new shoes.

My boyhood was dominated by books. I had discovered the riches of the local library and became a voracious reader. It was reading that led me to do well in school and to become a confident public speaker, a skill that would later enable me to make a mark as a lawyer. But there was another side to school. I was drawn to the “bad” boys in my class, the ones who were indifferent to school and who engaged in adventures of the street. With them I tasted the delights of forbidden activities and staged a quiet rebellion against the staid existence of a “nice Jewish boy.” This came to an end when I was thirteen and my parents, concerned about the bad influence of my friends, sent me off to a distant high school that had a large Jewish enrollment.

In high school I began working a part-time job. Because of the manpower shortage during the Second World War, at the age of fourteen I got a job as a stock boy and later as a salesman at a women's shoe store. Three years of selling shoes, kneeling at the feet of women and girls of all ages, were enough for me, and I looked for a change, for work that would be physical. Through a friend's uncle who owned a small construction company, I hired on as a laborer. Although the job was strenuous, I liked working outdoors with my hands and my body.

For three years, every summer I returned to construction work, earning money for college. I found dignity in being a workman, wearing overalls and work boots and getting dirty and tired. I developed an ability to talk plainly and directly, without airs. Perhaps because of this, I was later comfortable talking to Indian people, many without higher education, and able to establish an easy rapport despite their awareness that I was a lawyer.

College for me meant a local junior college—there was no money for university. I was lucky that Wright Junior College had an extraordinary program and fine instructors, and I experienced an intellectual awakening there. I absorbed the social s...