NATIONAL ASSOCIATION OF BOND LAWYERS

Voice from the Past
Chapter 22

There is one bit of larceny that I have long regretted my failure to commit.

Under the federal Voting Rights Act of 1965, in a political subdivision of which fifteen percent of the inhabitants could not read and write English, notices of election and ballots were required to be printed in the minority language, unless it was a historically unwritten language. This provision was aimed primarily at people who spoke Spanish as a native tongue, and might be expected to read and write in that language. But the law clearly applied to other languages as well, including those of various tribes of American Indians. These were all lumped together although many resembled each other no more than Finnish and Italian.

It happened that the City of Tulsa, Oklahoma, had recently annexed a small portion of Will Rogers County, and in that annexed portion, which was one of the poorest neighborhoods of the City, more than fifteen percent of the populace did not read and write English, or Spanish, or any other European language. They spoke various Indian languages, primarily Osage and Cherokee, and did not read or write in any language. There was no written Osage language, but the Cherokees did indeed have a written language that they adoped in 1821 after Sequoyah created it. To call it historically unwritten would be to cut history off before that. So it was generally agreed that Cherokee was not "historically unwritten."

The speakers of only Cherokee in the territory involved did not number fifteen percent of the population, but that was not significant under the law. The Assistant City Attorney with whom I worked advised me that since the arrival of the Cherokees in that part of Oklahoma they had for generations been required to go to schools where only English was spoken, and it was only the people who had not gone to school who could not read and write English. They could not read nor write Cherokee, either, but that made no difference under the law. Among some groups of people of Cherokee descent, it was considered an insult to address a person in that language because doing so implied that he was too stupid to have learned English. That also made no difference under the law. The fact that the official records of the Cherokee Nation had been kept in English for many years also made no difference under the law. The notices of election and ballots had to be printed in the minority language, and even though there may have been more people of Osage descent than of Cherokee, the former language was historically unwritten and Cherokee was not.

The city officials had no trouble finding people who spoke Cherokee, but none of them knew how to read and write it. If they read and wrote at all, they did so in English. But that made no difference under the law. In time they found an academic (perhaps at the University of Tulsa) who was able to translate the notice of election and the ballot into written Cherokee. Before the election on a bond issue that I was asked to approve, such notices were duly posted and a supply of ballots in Cherokee was made available at the polling places in the area involved. A copy of each, duly certified, appeared in the transcript of proceedings that I examined. The notice of election was a beauty! About a foot wide and two feet high, in red and blue ink on white paper, it consisted of exotic characters that might as well have been Sanskrit for all I could tell. But it was an impressive document, and I really wanted to lift it from the transcript and have it framed and displayed on my office wall. But I was too conscientious, and left it in the transcript where it belonged when I delivered the transcript to the purchaser of the bonds. Only after it was too late did I consider the possibilities of asking for a duplicate notice, or of inserting in the transcript a statement that anyone who wanted to see the notice could find it on my office wall.

As applied to bond elections where people of other tribal affiliation were involved, the application of the minority language requirements of the Voting Rights Act had other unforeseen consequences. My partner Phil Holm worked on a bond issue for San Juan County, Utah, or one of its political subdivisions. Here the minority language was Navajo. The alphabet was not the problem, the words were. Navajo had no words to express the meaning of the maturity of a bond, as the topic was not one with which the Navajos had experience. In time, after much discussion and thought, the translators came up with a solution: the final maturity of the bond issue was expressed by analogy to a woman who gives birth after a twenty-year gestation period.

Another experience Phil had with the Navajos was with a bond issue for their community college. First of all, the Tribal Code had no provision for issuing bonds. Phil wrote appropriate language to authorize such bonds, and the Navajo Tribal Council adopted it. However, state courts had no jurisdiction to enforce any such law, nor the bonds issued under it. Phil's opinion on the bonds recited that they were enforceable only in the Tribal Court of the Navajo Nation. The federal government (the Housing and Home Finance Agency or HUD) was the buyer of the bonds, and was willing to accept this language in the opinion. But the Navajos also had to promise to abide by the federal government's anti- discrimination policy. They were not concerned about any people of African, Asian, or European descent who might choose to attend their college, but they had grave doubts about the desirability of letting Hopis in. Eventually they agreed to abide by the policy, at least partly in consideration of the unlikelihood that any Hopis would want to attend their college.

Manly W. Mumford