He had become, for those who remembered his feats of courage on behalf of Maine Indians a half-century ago, a mythic figure.
Passamaquoddy of a certain age remembered a young lawyer who stood with the tribe when nobody else would. Mainers who were involved in the Maine tribes’ historic 1980 land claims settlement recalled the guy who got the process going, only to be convicted on a questionable marijuana charge. The history books, when they mentioned him at all, hinted at a quixotic character, an eccentric warm-up act for the real stars of the campaign for Indian justice, who were these books’ only sources.
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Don Gellers had been carefully, consciously airbrushed out of a story he did so much to create, an epic civil and human rights struggle of the Passamaquoddy who, when he arrived here in the mid-1960s, were oppressed and abused in ways almost shocking to Mainers today. By challenging and, often, outwitting authorities long accustomed to free rein over Washington County’s blighted reservations, he earned their ire and provoked powerful, autocratic retribution.
Gellers paid a terrible price for taking up the cause of Maine’s Indians, becoming the victim of a state-sponsored conspiracy to drive him out of Maine or into prison, one orchestrated by the Attorney General’s Office, zealously executed by the state police and rubber stamped by judges. The whole sordid tale was revealed in the pages of this newspaper earlier this summer, the first act of the 29-part series “Unsettled: Triumph and tragedy in Maine’s Indian country,” and allies in Maine have been working to secure him a gubernatorial pardon.
Sadly, Gellers – who had gone by his Hebrew birth name Tuvia Ben-Shmuel-Yosef since fleeing to Israel in 1971 – didn’t live to see his name cleared. The lawyer-turned-rabbi died Oct. 8 at his home in the Forest Hills section of Queens, New York, after an all-too-short battle with cancer. He was 78.
A RABBINICAL HERITAGE
Donald Cotesworth Gellers was born in New York City on May 2, 1936, the son of Elsie Glasser and Samuel J. Weitzen, a physician who had emigrated to the U.S. from a Sephardic Jewish community in southern Poland, where his father, grandfather and a brother were rabbis.
Gellers’ parents divorced when he was 4, and his mother later married Charles Gellers, a partner in a women’s sportswear manufacturing company in Manhattan.
“They produced a wonderful gift for me because I was a boy and the only child in my generation for a few years,” he recalled in one of our many conversations. “On the eve of my bar mitzvah there was my wonderful aunt saying, ‘It’s a boy, you have a brother’; he’s been my bar mitzvah present for as long as he’s been on this earth.”
His classmates at Forest Hills High School in Queens voted him “class diplomat” and after attending Northern Arizona University he considered that profession. He enrolled at Columbia to study international law and interned at the United Nations. There, however, he said he learned that what one of his professors had said was true: “A diplomat is an honest man who is sent abroad to lie for his country.”
“That’s not why I had ever wanted to be a lawyer,” he recalled. “I was motivated by a love of justice. So I needed to find something else.”
TO ‘A WILD POCKET OF AMERICA’
That something turned out to be Eastport, Maine, where Gellers and his first wife moved in 1963, inspired by its remote location, stupendous beauty and apparently welcoming people. She was an artist, he intended to become a small-town lawyer, believing you could have much more impact in a small community than in a large metropolis. “We ended up in this wild pocket of rural America, and I thought I would have a bucolic existence.”
Then George Francis, governor of the Passamaquoddy reservation at Pleasant Point, walked into his office. Nothing for Gellers, the tribe, or Maine would ever be the same.
For six years from May 1964, Gellers represented the tribe in matters large and small. He got charges dropped against peaceful protesters in a land dispute at the Indian Township reservation and compelled state officials to repair leaking reservation sewage systems, Princeton barbers to cut Indians’ hair, and legislators to repeal laws prohibiting tribal members from hunting on their own land.
He successfully challenged state jurisdiction over certain minor offenses on the reservations and launched an investigation of a tyrannical state Indian agent, a figure who then had effective powers of life and death over tribal members through the monopolistic control over access to food, medical care and fuel. (Indians were also prohibited from cutting firewood.) He and Indian leaders lobbied the state to create a new Indian Affairs Department, which was headed by a young anthropologist and, later, by a past and future Passamaquoddy chief.
Three incidents, however, appear to have particularly irked local and state authorities.
When an Indian man, Peter Francis, was beaten to death in an altercation with five white hunters in November 1965 and the county attorney refused to serve the murder warrants he had drawn up, Gellers cried foul to the press, drawing state and national media attention to the gross mishandling of the case. (Nobody was ever held accountable for Francis’ death, nor for the brutal beating of his friend and neighbor, Christy Altvater.)
Two years later, Gellers represented several Indians who were involved in a late-night melee with a state policeman and who, in the early hours of the morning, had been dragged from their beds and allegedly beaten by a posse of law enforcement officials, who forced their way into Indian homes and threatened residents.
And, on March 8, 1968, he drove to Boston to file the $150 million land claims suit he had been working on for the tribe for the past few years, one aiming to hold Maine accountable for the illegal plundering of the Passamaquoddy’s trust fund and for allowing the seizure of thousands of acres of land.
When he returned home to Eastport, the police were waiting for him, in disguise.
THE STATE STRIKES BACK
Gellers used marijuana and, as he told me a few weeks before his death, had encouraged his many Passamaquoddy friends to use it as a more benign alternative to alcohol. His wife had left him, and he was intending to marry a Passamaquoddy woman estranged from her violent and abusive husband, Danny Bassett. State authorities used both of these things to lay a trap.
With Bassett’s help, the Attorney General’s Office orchestrated a sting against Gellers, involving upward of a dozen personnel, a command post in a Calais motel, Danny Bassett infiltrating Gellers’ house, and even a state trooper posing as a Mafia hit man. They arrested the attorney, guns drawn, after claiming to have found six marijuana cigarettes in the pocket of a jacket hanging in his bedroom closet.
Although the Legislature had made minor possession a misdemeanor, Maine Attorney General James Erwin prosecuted Gellers under an older felony statute, and he was sentenced to two to four years in prison. During his long appeals process, a judge refused to allow the American Civil Liberties Union and the National Lawyers Guild – both concerned about an obvious miscarriage of justice – to file friend of the court briefs. He was denied a new trial, even after a prominent Boston attorney, Harvey Silverglate, came forward saying he’d been told by an assistant attorney general over drinks that his office had set up the unpopular attorney.
Gellers’ former summer intern, Tom Tureen, represented him in one phase of the process after his own attorney died, but suddenly withdrew the evening before a key hearing, leaving Gellers to cross-examine witnesses himself. Gellers accused Tureen of later stealing his files and convincing the tribe to fire him as their attorney and hire Tureen instead. Gellers had been working on a contingency basis, so he received nothing for his years of work on the case.
Gellers told me that when he came to Maine he was not particularly religious – “there wasn’t much kosher food in Eastport,” he pointed out – but through his trials and tribulations he rediscovered his Jewish identity. In 1971, his legal recourses exhausted, he decided to emigrate to Israel and said he met with the state prosecutor, Dick Cohen, to inform him. Cohen had no objection.
“As I was leaving, he said: ‘Don’t get me wrong, I respect what you are trying to do with those people,’ ” Gellers recalled of the meeting. ” ‘Great,’ I thought. ‘Nothing like a reward for a hard day’s work.’ ”
Although he kept them abreast of his whereabouts for years thereafter, Maine authorities never sought to apprehend Gellers, who hadn’t served his jail term.
EXODUS FROM MAINE
In Israel, Gellers adopted his Hebrew birth name, Tuvia Ben-Shmuel-Yosef, lived on a kibbutz and fought and was wounded in the 1973 Arab-Israeli war. He also applied to the Israeli bar, submitting full documentation of his conviction in Maine.
On reviewing the case files, the Principal Legal Assistant to the Attorney General of Israel wrote: “The case is a catalogue of horrors – including, but not limited to, multiple violations of due process, manufactured evidence, clear efforts to ‘get him’ because he advocated unpopular ideas and defended unpopular clients.” He was admitted to practice law in Israel without reservation.
In the early 1980s, he returned to the U.S. and New York City, although he had always intended to return to Israel. “Perhaps he wanted to see if he could pursue to some degree the wrongs that were done, to clear his name, but he never intended to stay here,” his brother, Paul Gellers, said. “His goal and his hope was always to return to Israel, to live there and, if it were possible, to be buried there.”
In 1989 he disclosed the circumstances of his case to authorities at the U.S .Circuit Court of Appeals for the 1st Circuit, before which he had been admitted to practice law in 1966. The court issued him a certificate of good standing, allowing the supposed fugitive to practice law there as well, although he didn’t do so full time. He had by then become a rabbi.
“He was always a living example of what Judaism embodied, and in his studies of the Torah and other sacred texts and books, he realized that we as a people are about justice and truth,” Paul Gellers aid. “His passion was a striving for justice and fairness for anyone, especially the underdog and the downtrodden. It could be a tribe or it could be a poor woman who lost her luggage on an airplane.”
“He was always helping people, and if people were arrested he was always right there and almost always won the case. He had a gift,” said Mary Creighton, a Passamaquoddy elder who was close friends with Gellers during his own legal struggles at the end of the 1960s, and recalled that tribal members had given him the nickname “Groovy.”
While Gellers was fairly confident that Maine had no interest in trying to apprehend him in New York, he said the conviction had always hung over his head, like a weapon that could be dropped on him by any opponent. He said his second wife had successfully used it in divorce proceedings to win sole custody of their daughter, and he believed this legally imposed absence contributed to her fatal drug overdose.
“This,” he told me, “is just a sampling of what I have gone through.”
In Forest Hills, Gellers – Rabbi Ben-Shmuel-Yosef – was part of the Moroccan Jewish Organization synagogue. Teaching students there, his brother said, had become a central focus of his life.
When I first spoke with him a year and a half ago, he was in good health. As I dug into the Passamaquoddy story, parsing documents and locating sources, he learned he had cancer. By the time we met at his book-lined apartment in the spring, his prognosis was uncertain. Shortly after the monthlong series exposed his story, his doctors told him there was nothing more they could do.
He died at home Oct. 8.
A Freeport attorney, Robert Checkoway, is continuing his pro bono effort to obtain a gubernatorial pardon for the deceased at the family’s request.
The family of Peter Francis, the Passamaquoddy man slain in 1965, issued a statement saying that Gellers would be remembered “as a fighter for those who had no voice and a passionate man whose greatest crime in the State of Maine was caring too much for his clients.”
Gellers also is survived by a daughter, Rachel Weitzen. The family encourages memorial gifts to be made to the American Cancer Society or to buy a tree in Israel.
“He always taught me that God is truth and the most powerful force in the universe was truth,” Paul Gellers said. “And he really walked the walk and talked the talk his whole life.”
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