Transcript JUSTICE: THE NAVAJO WAY

Patricia G. Williams
WIGGINS, WILLIAMS & WIGGINS, PC
 The Navajo Nation court system is the largest Indian
court system in the United States and has been called
the “flagship” of American tribal courts.
 The Navajo Nation court system blends traditional
practices with elements of the American mainstream
justice system.
 This session will help a practitioner understand the
essential tension between the prevailing justice system
and the traditional ways of the Dine and understand
some key cultural concepts that are used to resolve
disputes within the boundaries of the Navajo Nation.
 Prior to the arrival of the Spanish (1598) and the
Anglos (1846), Navajos governed themselves and re
solved disputes by "talking things out."
 The judges were the hozhoji' Naat'aah, or peace chiefs.
They were leaders, chosen by community consensus,
because of their wisdom, spirituality, exemplary
conduct, speaking ability, and skill in planning for
community survival and prosperity.
 Traditional Navajo law was not based on power but
on relationships, respect, and mutual need.
 During the detention of the Navajo People at Bosque
Redondo (1863-1868), Navajos were divided into twelve
villages. Each village had a "chief."
 After the return from Fort Sumner, the first Indian
courts, the Courts of Indian Offenses, were created in
April 1883 by the Commissioner of Indian Affairs.
 The Code was designed to destroy Indian customs and
religious practices, and was used as a vehicle to control
the Navajo People.
 Many traditional practices were made crimes:
 polygamy
 wedding gifts
 traditional probate practices
 It was a crime to see a medicine man or woman, or to
be a medicine man or woman.
 In 1892, the Navajo Courts of Indian Offenses were
established.
 Early records show that the judges handled cases
involving alcohol possession, family violence, public
intoxication, and theft.
In 1934, the Indian Reorganization Act became law.
Section 16 of that law recognized the "existing powers of
Indian tribes." That section stands for the legal
proposition that Indian Nations have the power to make
their own laws and set up their own judicial systems the basis for tribal courts.
 In 1942, the U.S. attorney for Utah and the chief Utah
FBI agent were sent to study the Navajo courts, and
their report praised the work of the Navajo judges.
 The study shows that judges used customary Navajo
procedures and court hearings were conducted like a
chapter meeting.
Shiprock Chapter meeting 1959
 The 1950's were the "era of termination," when
Congress began a process to abolish Indian Nation
governments. When a bill was introduced in the
Arizona Legislature to assert jurisdiction over the
Navajo Nation, the Council reacted and created a court
system which was a carbon copy of a state justice court
on April 1, 1959.
 Shortly after 1959, the Navajo Nation Council chose to
have judges elected.
 Based on issues of fairness and impartiality, the
Council soon abolished the election process and
appointed judges.
 In the late 1970's, the Chairman of the Navajo Nation
was disappointed by the decisions of the Navajo
Nation Court of Appeals and created the Supreme
Judicial Council, composed of council delegates and
judges to hear appeals from the Navajo Nation Court
of Appeals.
 In 1985, the Navajo Nation Council passed the Judicial
Reform Act to create the Navajo Nation Supreme
Court, streamline court operations and abolish both
the Navajo Nation Court of Appeals and the Supreme
Judicial Council.
 By the early 1980's, members of the Navajo Nation
Council, judges and the Navajo People sought to revive
traditional Navajo justice methods, and the judges
began to apply traditional Navajo legal principles in
their decisions
 While the judges did so in the English language, their
decisions gave a great deal of insight into Navajo
common law, now the law of preference in the Navajo
Nation.
 This initiative later led to re-discovery and
revitalization of Navajo style of justice, "Peacemaking"
in the English language.
 This blend of traditional methods and non-Native
methods of resolving disputes is the fabric of Navajo
justice in the modern context.
 The intent of the Navajo Judicial Branch is to revitalize
and promote traditional justice among the Dine,
regardless of the continuing integration of different
thinking, planning, lifeways, languages and beliefs.
 The Navajo government intends to create a judicial
system to preserve and enhance all that was inherited
from their ancestors.
 The concept of peacemaking goes back to the
beginning of time and is embedded in the journey
narrative. According to the journey narrative, the Holy
People passed through four worlds. In the course of
their journey, they came upon many problems. Some
were caused by nature and some were caused by the
Holy People. These problems had to be addressed and
resolved before the people could move on.
 Problems along the journey could be
addressed by:
 Prayer
 Songs
 Offerings
 Talking things out

This talking things out became the Dine
peacemaking process
 Engagement with the Peacemaker provides the sense
of identity and pride from cultural foundations.
 K’e is normally what binds human beings together in
mutual respect.
 Anáhóót’i’, hóóchx̨o’, iiná yisdił, iiná deeskid
(collectively “hóóchx̨o’/ anáhóót’i’”) mean the opposite
of harmony, when things are not what they should be.
They are also problems or chaos that disrupt inner and
outer harmonious life.
 Hóóchx̨o’/anáhóót’i’, disharmony, can block and
overwhelm clanship, k’é.
 Traditional Diné Peacemaking begins in a place of
chaos, hóóchx̨o’/anáhóót’i’, whether within an
individual or between human beings. Perhaps due to
historical trauma, Navajos shy away from face-to-face
confrontations. However, such confrontations are vital
in order to dispel hóóchx̨o’/anáhóót’i’. The Peacemaker
has the courage and skills to provide the groundwork
for the person or group to confront hóóchx̨o’/anáhóót’i’
and move toward mastering harmonious existence.
 Through the process, the Peacemaker educates, scolds,
persuades, pleads and cajoles the individual or group
toward a readiness to open up, listen, share, and make
decisions as a single unit using k’é.
 Naachid means a process; this is what we are engaging
in. It means the procedure of naachid in which the
societal situation is recognized and confronted. It is
also a noun-- naachid is the person with the plan, the
person who points. Naachid is the way human beings
and creatures solved problems at a particular time in
the pre-history of the Diné, in the early pre-language
years of emergence, in the days of origin.
 Nályééh means reparations but never “damages” when
used traditionally. It is sometimes said that hózh̨ó is
restored through nályééh.
 When the disharmony is confronted, people may learn
there is a choice to leave it. When harmony, hózh̨̨ó, is
self-realized, sustaining it will have clarity and
permanent hózh̨̨ó will be self-attainable.
 Litigation is, in essence, conflict and the adversarial
process conflicts with the Navajo fundamental
principle to live in harmony.
 The essential tension between the prevailing justice
system and the traditional ways of the Dine is being
addressed proactively by the Navajo Nation judiciary
with an eye to administering justice among the Dine
for another millennium.
ahéheeʼ