Boalt Alumna, Students Serve as Long-Distance Law Clerks for the
Arizona Tribe
by Gretchen Kell
With no law clerks, an inadequate law library, insufficient federal funding, and trial court judges with little formal legal training, the Hopi judicial system in northeast Arizona has been frustrated in its attempts at self-governance.
Without resources, Hopi judges cannot begin a crucial task--researching and documenting the tribe's age-old customary laws, the unwritten and ever-changing rules of the Hopi villages and clans. It has been easier, although less suitable, for them to apply existing "foreign"--federal and state--laws.
But a group of Berkeley law students, led by an alumna who grew up on the Hopi reservation, has volunteered to help. As part of the new Tribal Court Project at Boalt Hall, seven students have become the Hopi appellate court's first law clerks.
The group is tackling a backlog of more than 40 cases pending in the tribal appellate court. After doing research for the cases by consulting both foreign and customary law, they are drafting memos to the court's three judges and mailing them to Arizona.
"We have formal legal training, and we've got access to some of the best legal minds in the country in our professors at Boalt," said Pat Sekaquaptewa, 28, the 1995 Boalt Hall graduate who coordinates the project. "The information we give the judges might be the only help they're getting, and it's the best information they've ever had."
"The students have become an indispensable part of our review process for the Hopi appellate court," said her uncle, Emory Sekaquaptewa, who is chief justice of the Hopi appellate court.
The Tribal Court Project's ultimate goal, said Pat Sekaquaptewa, is to provide the Hopi tribe with enough resources and access to the law to self-govern. For generations, the tribe mainly has adopted federal guidelines, often by following policy and regulations given to Hopi leaders in manuals from the Department of the Interior.
"Tribal leaders, in general, have had no background or confidence to question what they were being told to do," said Sekaquaptewa. "My generation was the first to hit graduate school and to tell them, 'We don't have to follow a manual. We can decide how to govern ourselves.'
"Tribes have been cutting and pasting federal and state law into their jurisdictions without also recognizing the customary laws that still function in 1995 and can be applied within the western tribal justice system."
"Using foreign law," said her uncle, "has a subtle way of undermining tribal sovereignty. It is this very notion of tribal sovereignty that offers the last opportunity for self-determination."
As long distance law clerks, the Berkeley students are using the Boalt Hall library, one of the most comprehensive law libraries in the nation, as well as Hopi treatises in the anthropology department, to do their research. The data in these documents, called monographs, from the late 1800s and early 1900s reveal how the tribe's clans and villages made decisions in the past.
The students also are helping the court compile its first written records of appellate judicial decisions and are creating a small law library for it at Boalt Hall, with copies of the records sent to the judges.
"Before now, the appellate judges couldn't look back at previous decisions," said Pat Sekaquaptewa. "They couldn't see legal reasoning evolve. There was no record of what had happened in the past."
The tribe flies several of the students to Arizona twice a semester to discuss their research with the judges at the Hopi Court facility in Keams Canyon. To raise money for overhead expenses for the project, the student group holds Hopi food sales at the law school, serving up hominy stew and blue corn meal pudding.
Participants in the project also take Anthropology of Law, a Berkeley class that explores law in different societies, and a tribal law workshop that provides an overview of this emerging field.
Emory Sekaquaptewa came up with the idea for a Hopi court law clinic. The first Hopi to go to law school, he has been a Hopi appellate court judge for more than 12 years and also is a research anthropologist at the University of Arizona at Tucson. After his niece spent the summer of 1993 working in the courts, he proposed signing up other Berkeley students as law clerks.
Pat Sekaquaptewa said she took her uncle's idea and "extrapolated it like crazy," suggesting that the students also assist in research for a treatise that would give an overview of Hopi customary law.
She considers the Tribal Court Project a lifelong effort and is financially supported by an Echoing Green fellowship. The grant is given by the New York foundation to worthy public service entrepreneurs.
Professor Robert Cooter, who teaches law and anthropology at Boalt Hall and is the project's faculty adviser, said that without Pat Sekaquaptewa, it would have been nearly impossible for Berkeley to help the tribe in its self-governance efforts.
"In my opinion, it's extremely difficult to give any useful help to a tribal court unless you have an inside tie, and that's what Pat represents," he said. "This project is about as unique as Pat is--it's rare to find Indians who grew up on a reservation and are imbedded in its life at a law school."
Cooter said tribes often "find the laws on the books not very amenable to their own needs and traditions. They need to find a way of bringing to bear the wisdom of their old norms of life in the legal process."
Sekaquaptewa said she would like to see the Boalt Hall project branch out in the future to include a summer program for Hopi high school students on the reservation who might be interested in attending law school.
"Most of the Indian students recruited by law schools are from urban areas," she said. "At the tribal level, in rural areas, the schools are not always good and there is no active recruitment.
"Hopi people can never feel ownership over their laws unless they're fully legally trained. True self-governance means educating the average Hopi person about how the courts work and how Hopi law is evolving."