Washington D.C. attorney Philip Baker-Shenk ’79 developed his interest in Native American legal matters as an EMU student in 1976 at what is now called the Washington Community Scholars’ Center. (Photo by Kara Lofton)
Not long after Dennis Glanzer ’73 married a Navajo woman and started law school at Arizona State University, he faced a family tragedy that led him to the work he does today. Glanzer’s brother-in-law was killed in car accident.
His brother-in-law had lived with and supported his mother (Glanzer’s mother-in-law) during the time of his marriage and divorce, which was finalized just a month before his death. However, his ex-wife’s name was still on the paperwork and after he died she wanted to claim his life insurance.
Glanzer’s mother-in-law believed that traditional Navajo inheritance principles should apply, rather than state law – which would have passed the insurance to the ex-wife. Glanzer’s wife, Judy Apachee, could find no attorneys who could clarify whether this was the case.
“Judy found an existing – yet unused – Navajo code statute that allowed for application of ‘Navajo custom’ in probate matters,” Glanzer writes in an email from his Arizona home. “Together Judy and I wrote a brief to support application of the principles well known to Judy’s mother.”
This was one of several cases which opened the door to what became known as Navajo Common Law, and which was later enacted by the Navajo Nation Council under the Navajo term of Diné bi beenahaz’áanii.
Three specializing in law for Native Americans
Glanzer is one of three EMU alumni working in Native American law. The other two are Philip Baker-Shenk ’79 and Curtis Berkey ’74. In the early 80s, Baker-Shenk and Berkey lived in the same neighborhood while working in Washington D.C. and knew each other “through Mennonite circles” (though Baker-Shenk later shifted to Presbyterian circles). Both men were graduates of Catholic University’s Columbus School of Law and worked with Native American issues, but were in different practices.
The laws covering Native Americans are complex. The United States Government recognizes 566 tribes, according to the Bureau for Indian Affairs. As quasi-sovereign states, each tribe is entitled to self-governance and has a direct relationship with the federal government, bypassing state governments. As a result of ceding large areas of land, tribes are entitled to legal protection and to programs and services from the U.S. government. Some tribes have court systems, like the Navajo, but many do not and rely instead on Anglo courts for resolution of rights.
“It is a very fascinating area of law, very dynamic, because there is room for a lot of creative work,” says Baker-Shenk.
The three men approach their work slightly differently. Glanzer, who passed both the Navajo bar and the state bar, practices mostly in Navajo courts these days. Berkey and Baker-Shenk navigate federal and state courts to advocate for the rights the tribes have in their unique relationship to the federal government.
Philip Baker-Shenk
Baker-Shenk worked with a Quaker lobby group on American Indian affairs as a student in 1976 at what is now called EMU’s Washington Community Scholars’ Center. After that year, he took a break to be a staff member with the U.S. Senate Committee on Indian Affairs before returning to EMU to finish his degree. When Baker-Shenk graduated from law school, he retained an interest in Native American issues, but wasn’t sure if non-Indian lawyers were needed. So he spent three years in Washington D.C. clerking for a judge and practicing criminal defense law before returning to the field.
Now a partner with Holland & Knight LLP in Washington D.C., Baker-Shenk spends most of his time these days as a “tribal advocate,” usually on self-governance, taxation, and economic development issues, such as gaming. One notable case involved a successful fight against a proposed tax on tribal government revenue during the Clinton Administration.
In the late ’90s, the Republican chair of the House Committee on Ways and Means pushed hard for a new 35-40% tax on tribal government revenue in order to lower taxes for others. Baker-Shenk thought this was a terrible idea.
“Many tribal folks are still struggling out of poverty and the idea that 40% of every tribal dollar would be going to the federal government would set them way back,” he says. “I was part of a large team of tribal advocates who lobbied very hard against this proposal. Our argument was that governments don’t tax other governments….The win was a huge success because we preserved tribal dollars for tribal needs and tribal programs.”
Though he opposed the Republican chair on this issue, Baker-Shenk is a Republican himself. Between 2000 and 2010, he served both as an active member and chair of the Washington County Republican Central Committee in Maryland. From 1995 to 1997 he served as Majority General Counsel to Senate Indian Affairs Committee Chair and U.S. Senator John McCain (R-AZ).
Baker-Shenk says there are many more Indian lawyers now than there were when he started in the field, but there still aren’t enough to cover the need. “I’ve made life-long friends with so many folks in this field; their cause is my cause,” he says.
“In the past 40 years, Native American Tribal Governments have gone from absolute destitution and poverty, in many ways lacking power and achieving very little self-governance, to very robust, complex and empowered financial and political economies.
“This has made for a fascinating cultural renaissance in Indian Country that has enriched my life and that of so many others. Although some tribes are still struggling, things have immeasurably improved in the past 40 years that I have had the privilege of being involved.”
Curtis Berkey
Baker-Shenk’s former neighbor, Curtis Berkey, now lives in California where local tribal needs include having enough water and preserving sacred sites that are outside tribes’ reservations.
Berkey has worked in the field of Indian law his entire legal career, since graduating from law school in 1979. For two years, he was a trial lawyer for the U.S. Justice Department where, on behalf of the Sac and Fox Nation of Oklahoma, he successfully litigated and settled a multi-million dollar groundwater contamination case.
Today, as one of the founding partners of Berkey Williams LLP in Berkley, California, he focuses heavily on water rights: “We are trying to establish the right of the Indian tribe or the Indian nation to use a set amount of water in water basins where there are short supplies,” he says.
Berkey says water rights cases are hard-fought, complicated cases that involve thousands of defendants and require complex federal litigation. Essentially water rights come down to which party (vineyards, farms, cities or tribes) has priority when water is in short supply. Berkey’s firm argues that tribes should have precedence, for reasons implied by the title of a book he co-authored in 1992, Exiled in the Land of the Free: Democracy, Indian Nations and the U.S. Constitution. The tribes were here first, and being treated as exiles in their own land must cease.
In another variation on water rights, Berkey represented a consortium of Northern California tribes in securing the right to continue traditional harvesting and gathering within marine-protected areas set up by California.
As one of his most memorable cases, Berkey cites a company that proposed building a ski resort on one of the most sacred lands of the Honey Lake Maidu tribe. The tribe considered the land in question the birthplace of Creation. Berkey’s firm won the case by using environmental statutes to protect the tribe: they argued it doesn’t make sense to build a ski resort in an area that frequently experiences droughts and that the harm to the tribe could not be mitigated. In addition to pulling water away from other needs, snow would often have to be made for the slopes, which can be prohibitively expensive.
After graduating from EMU in 1974, Berkey spent a year with Mennonite Central Committee, assigned to the Institute for the Development of Indian Law in Washington D.C. When he was a student at EMU, he recalls, very few of his classmates went to law school because there was an unspoken perception that practicing law was too close to crossing the line between church and state.
“I think it was mostly that people hadn’t thought it through,” he said. “I remember having a conversation with the theologian John Howard Yoder that this is one area that the Mennonite intellectual community hasn’t tackled yet.”
But one of his history professors, Albert Keim ’63, encouraged him to consider going to law school. “Law combined my love of history with my interest in using law as a tool for social change,” he said. “So I was always attracted to it for that reason. And there was a deep need for lawyers to practice Indian law.”
Berkey teaches the Advanced Indian Law seminar at the University of California, Berkeley, School of Law, alongside the other founding partner of his six- attorney firm, Scott Williams, a long-time advocate of social and economic justice.
Dennis Glanzer ’73
Dennis Glanzer
Back in Arizona, the law firm that Glanzer and his wife share also navigates cases having to do with land use issues and conservatorships. In fact, one might say that land-use issues propelled them into law, nearly 30 years ago.
Glanzer started his career as a teacher. The first year that he and his wife were married, he taught at a dual-language school on the reservation while she worked as an interpreter for an Anglo couple researching a book. Part of her job was to go out into the community and talk to the elders about Navajo history.
“From Judy, I heard tales of Navajo elders who had been displaced by the coal mining operations on Black Mesa, pursuant to contracts with the Navajo government,” he says.
The Navajo government had contracted with a mining company, allowing the company to mine on the reservation in exchange for royalties, which were a big source of income for the government. Mine drainage was polluting water sources, though, and pushing residents out of their homes. “It was a shock that their own government wasn’t recognizing their needs,” Glanzer explains.
Native Americans who live on reservations are in a unique position in the United States. They are actually subject to two governments and are considered citizens in two nations. In a way, this means that they should be doubly protected, but as Glanzer found before he started law school, this is not always the case. Even on the reservation, “there are always people who get forgotten,” he says.
The other challenge for Native American tribes is that traditional laws and customs, including how to deal with conflict and law-breakers, are often very different than Anglo practices. One such practice in the Navajo Nation is called “peacemaking.”
“The Navajo Courts have instituted peacemaking programs based on traditional, non-adversarial dispute resolution methods based on ‘talking things out’ among all who are affected by an issue or problem,” Glanzer says.
Attorneys are not allowed to participate in peacemaking programs, which are mediated by unbiased, trained community mediators. Anyone who was affected by the issue can attend and contribute to the discussion. It is akin to the “circle process” familiar to restorative justice practitioners trained at EMU’s Center for Justice and Peacebuilding.
Glanzer also seeks “to apply such principles in our adversarial court practice, where ‘winning’ is not an overriding goal, but rather moving closer to restoring harmony and balance among the parties as much as possible.”
These peacemaking programs resonate with much of EMU’s mission and vision for the world. “There is a lot of traditional thinking and cultural thinking that is similar between Navajos and Mennonites,” says Glanzer, who feels that his EMU education prepared him for this journey before he even knew he was on it.