due process

Deborah Locke: Disenrollment: My Personal Story

Tribal Citizenship Conference

Deborah Locke, adopted by a Fond du Lac Band of Lake Superior Chippewa couple when she was a small child, shares her heartbreaking story of how she and her adopted siblings were disenrolled by the Band decades later because they were not the biological descendants of Fond du Lac Band members and also because they did not meet the minimum blood quantum requirement as established by the Minnesota Chippewa Tribe constitution.

This video resource is featured on the Indigenous Governance Database with the permission of the Bush Foundation.

Resource Type

Locke, Deborah. "Disenrollment: My Personal Story." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

Sarah Deer:

"Our final panel today is looking at the question of disenrollment. So we have a number...we have three speakers who are going to each discuss one angle or one facet of the controversial issue of disenrollment. So we have legal, personal, and traditional perspectives on this question. We have three speakers.

I'm going to start with Deborah Locke from Turtle Mountain. She is a former editorial board member for the St. Paul Pioneer Press and a former reporter for the Milwaukee Journal. She also edited and wrote for the newspaper of the Fond du Lac Reservation, worked for almost three years on a legacy amendment funded project on the 1862 U.S.-Dakota War at the Minnesota Historical Society and she is currently a freelance writer for the Mille Lacs Band.

Shawn Frank from the Jacobson Law Group is a member of the Seneca Nation of Indians, joined Jacobson Law Group in 2002, has substantial experience representing Indian tribes, tribal organizations and entities that do business with tribes. He became a shareholder in 2003. Mr. Frank does speak regularly at lawyer's seminars on the subjects of tribal sovereignty, doing business in Indian Country, the Freedom of Information Act and the administrative appeals through the Department of Interior.

And finally Sharon Day, Executive Director of the Indigenous Peoples Task Force from Bois Forte Band [of Chippewa]. Ms. Day is one of the founders of the Indigenous Peoples Task Force, formerly known as the Minnesota American Indian AIDS Task Force. It began as a volunteer organization with all of the work performed by the board of directors. They hired their first staff, Ms. Day, in 1988 and she has served in this capacity since that time. Ms. Day has received numerous awards including the Resourceful Woman Award, BIHA's Woman of Color Award, the National Native American AIDS Prevention Resource Center's Red Ribbon Award, and most recently the Alston Bannerman Sabbatical Award. She also is an editor of an anthology and a lead walker who carries the water from the Gulf of Mexico to Lake Superior with the Mother Earth Water Walk. I'm looking forward to all their presentations, so please join me in welcoming our panel."


Deborah Locke:

"Hi, I'm Deborah. It's nice to be here today. I hope you can hear me. I received this letter dated January 6th from the Fond du Lac [Band of Lake Superior Chippewa] Reservation Business Committee:

Ms. Locke,

It's come to the attention of the Fond du Lac Reservation Business Committee that you are not the biological daughter of Frederick and Anna Marie Locke and that you were in fact adopted by Mr. and Mrs. Locke. Under Article 2, Section 1c of the Minnesota [Chippewa] Tribe Constitution, only the biological children of members of the Minnesota Chippewa Tribe are eligible for membership in the tribe and if born after July 3rd, 1961, must also possess one-fourth degree MCT blood quantum.

There's a lot of lawyers in this room. I think most of you know that by heart.

The Reservation Business Committee has accordingly directed that disenrollment proceedings be initiated against you in accordance with MCT Ordinance #9. You have 30 days from the date of this letter to request a hearing before the Fond du Lac Tribal Court to provide evidence and argument as to why you should not be disenrolled.

Think about that.

In addition, per capita payments from the Band are being immediately suspended pending the final outcome of this matter.

Linda J. Nelson
Enrollment Officer

I was standing outside the Rosedale Target when I read that letter one cold day and I cannot even explain to you how weird I felt. I felt damn weird. The day before I was identifying with Pocahontas, today I'm a white girl. The day before I was a Band member. I had family at Fond du Lac. Today I'm cut free. I'm a white girl. I tell you, that felt a little bit weird and it also felt embarrassing. More than anything else it felt embarrassing. I thought, ‘What did I do to bring this on? I was born and I was adopted. That's all that I ever did. What...they've got Band members that shoot each other, that use drugs, that steal, that...the list goes on and on and they're getting rid of me?' I tell you, I was totally perplexed. I called my mother from my cell phone in the parking lot and told her what I'd received. She was absolutely incensed. She was very, very upset and bewildered and she started calling relatives after we hung up. So let me tell you a little bit more about my mother and my dad.

They adopted four American Indian kids in the 1950s and they had always...they wanted children. They went to Catholic Charities in Duluth. A social worker asked them if it was okay if the children were Indian. My mother is a Band member at Fond du Lac and she said, ‘Are you serious? We don't care what color they are.' Dad said the same thing and so four children came fairly quickly after that. I was the first and when I was a little girl my parents had a book that they read to all of us starting with me that was called The Chosen Baby and it was about two kids named Peter and Mary. And Peter and Mary were adopted, and what I took from that book starting when I was three years old is that being adopted is really special. Being adopted means that you are a gift to someone and being adopted means that you were chosen for a very special reason. And so I lived with that magic for a long time and most of my life believing that adoption is a good thing.

So that's my family background a little bit, and I'll tell you that the Fond du Lac Band was also interested in that family background starting with this letter dated July 22, 2009. The Band had sent a letter to the Minnesota Chippewa Tribe asking for assistance in getting my adoption records from the state. So a letter went to the Minnesota Department of Human Services and I'm going to read a little bit about this. ‘The Minnesota Chippewa Tribe branch of Tribal Operations is inquiring of the circumstances of the adoption of...' and then it lists the four Locke children and it's signed by Brian Brunelle, Director of Administration for the Minnesota Chippewa Tribe. And that was followed by an affidavit dated December 23, 2009 from a Jamie Lee with the Department of Human Services at the state and she's responsible for maintaining the adoption records and in this document, in this affidavit she ensured everybody that I was indeed adopted. Here's the date I was adopted, when it was finalized, here's the case number and my name was changed from whatever to Deborah Locke on this date.

Also within these papers that the tribe had was a resolution from the Minnesota Chippewa Tribe dated 1978 wherein I and my brothers and sisters were enrolled with the Band. We were enrolled with the Band because my uncle, Peter DeFoe, Sr., had gone to my mother one day and said, ‘You should have the children enrolled. They're all Indian. They're my nieces and my nephews. I recognize them as such and they should be enrolled.' And mom said, ‘All right.' So she went through with it and apparently that went without a hitch. All I know is that one day in my 20s I was told that I was enrolled. Well, I thought that was pretty cool, but I didn't really fully understand it quite honestly.

You might wonder, where did this all start at Fond du Lac? And from what I can tell it began maybe at least five years earlier, maybe longer, with a family that had adopted two non-Indian children. The woman, Roberta Smith Poloski was a Band member. Her husband was not. He's not American Indian. And they adopted these two girls and had them enrolled in 1982 and there were Band members who very much resented that. The little girls grew up with their Indian relatives, identified with American Indian culture, and were pretty much accepted as far as I knew. We were good friends with them; they lived just down the street.

So the Poloski girls were later identified as non-Indians with Band benefits and there were complaints about that that were registered with the RBC [Reservation Business Committee] starting again minimally five years before this and it might have even been 10 years. I can...I'll read this to you, this is the RBC open meeting minutes from the Brookston Community Center dated November 19, 2009.

Geraldine Savage asked, ‘What is going on with the disenrollment issue?'

Chairman Karen Diver said, ‘There has been a hearing and we're just waiting to hear on the judge's decision.'

Ms. Savage asked, ‘Why is the RBC waiting for the judge to decide?'

Mr. Ferdinand Martineau said, ‘We are following the ordinance that was done in 1988.'

Ms. Savage said, ‘It should be the RBC making the decision.'

Mr. Martineau said, ‘This is the way the ordinance is set up.'

Ms. Joyce LaPorte asked if this is going to cause a backlash.

Mr. Ferdinand Martineau said, ‘It may.'

Mr. Martineau said, ‘The individuals were enrolled under a different council.'

Ms. Geraldine Savage asked, ‘How long will it take for a decision?'

Mr. Martineau said, ‘The enrollment issue should have been easy to decide.'

Mr. Martineau said, ‘Conflict would come if the tribal court said to leave them enrolled.'

Ms. Savage said, ‘This would be a conflict then.'

Mr. Martino said, ‘But we have brothers and sisters and some of them are enrolled and some of them are not enrolled.'

Ms. Nancy Sepala asked if we are going to lose Band members because of the blood quantums.

That last question was never addressed. They went on to talk about elderly housing. I think that last question is really a key one, and that was a question that a lot more people than Ms. Nancy Sepala was wondering at that time. What would be the ultimate outcome of these disenrollments that we're starting?

So anyway, the Poloski girls had their day in court and the tribal judge ruled against them. They decided to come down to St. Paul and present their arguments to the Court of Appeals, the Minnesota Chippewa Tribe Court of Appeals, and that court gave them a decision dated March 30, 2010 that said, ‘We affirm the Fond du Lac Tribal Court decision and their justification was that all children of at least one-quarter degree Minnesota Chippewa Indian blood born after July 3, 1961 to a member...' and then there's that language. So apparently the girls didn't fill that criteria. And then there's reference to the fact that ‘the constitution is unambiguous and that the children must possess a direct biological link to members of the tribe and that at least one-quarter of the applicant's biological lineage must trace to Minnesota Chippewa Indians. Applying this clear requirement to the facts at issue in the appeal is a straightforward task, but it's a task that we do with sadness.'

So Renee and Robin were disenrolled and they complained to the RBC that there were other people who were still enrolled who were also adopted including those Locke kids who were just down the street. And so the RBC took that charge pretty seriously and started its investigation, and I've just read to you some of the documentation that they were working with. What happened to me? Well, after that very fateful day when I received the letter, I was working as their editor and I went to work and made a couple of calls and discovered that not everybody agreed that that disenrollment action was a good idea and that made me feel pretty good. In fact, there were a few people who were rather upset at the Fond du Lac Band when the news of this got out. I don't think it was a groundswell. I don't think that...nothing like that happened, but there were a few key people who mean something to me who didn't like what happened and they had some good advice, including names of attorneys throughout the state who I should contact to get some advice from and so I did. I made phone calls and discovered that I should request a petition date. I'm sorry I'm not a lawyer, I can't get into too many of the legalities, but I do know that it wasn't long after that before we did set...we sent documentation and asked for a hearing. And then I had to wait quite awhile before that hearing date actually came up.

But in the meantime, again I was in this odd rather limbo-like state. I knew some details of my adoption. I knew that my biological mother was from Turtle Mountain. I had seen documentation from the county, St. Louis County, which said that my...the name of my father had never been released. There was no reason for us to presume he was not Fund du Lac. The only description and information I ever learned about my father was that he was tall and he liked to hunt and fish. Well, now that covers about 98 percent of the men at Fond du Lac, although not all of them are that tall, but there could be a tall one out there somewhere. So they all like to hunt and fish and he was athletic, so that was all very interesting, but it didn't tell me a whole lot. It didn't tell me whether or not he was in fact a Band member.

What happened from there is this. I was urged to find an attorney, I couldn't. I called everywhere I could think of to get someone to take the case. Finally, Tim Aldridge did and he was an attorney at Bemidji all the time, had done some work for a couple of bands and Tim agreed to take on the case. The reason these lawyers said 'no' was because there was no precedent. They didn't know what they were getting into and they weren't quite sure how to win it. I'm sure the list goes on and on and on. But my mother went into her savings to pay for the retainer, which absolutely broke my heart, but I didn't have many choices at the time and I think this is true of a lot of people who are included with me. What I heard is from 20 to 40 people at Fond du Lac got that letter and I was the first one to go through with a trial or a court hearing, which says that I was the only one who paid the money that it required. That's an advantage tribal courts have. They know that the people who they represent often don't have the money to pay for an attorney. I think that's one of the worst tragedies of this story.

Anyway, I went ahead, I had this great lawyer and when we got the hearing date, he and a couple of other...quite a few people were sort of involved with this and giving me various kinds of advice. They put together a summons and complaint and I filed it and things were quiet for awhile and then we had our...and I hired the attorney and we had our initial hearing. That went okay. I'm not even quite sure...that was just to see what information...discovery, that was discovery. And then we set the date or the hearing date in the tribal court offices or the tribal courtroom, whatever that's called. And I argued that or my attorney argued with me a number of things and here's what I can tell you from the complaint.

He cited the Indian Civil Rights Act and he said that that states that, ‘No Indian tribe in exercising powers of self-government shall deny to any person within this jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law.' Again you're wondering, property, yeah, that little $400 a month payment that I was getting was very useful. That was cut off with absolutely no notice whatsoever. That's just the beginning of what was cut off. I was informed of a -- this goes on -- now this is my voice. ‘I was informed of a pre-hearing conference set for May 18, 2010, but have not received the documents that will be used against me. I request...' and here's B, ‘I request the honorable court to scrutinize the purpose of the disenrollment attempt as to procedural and substantive due process. The January 6th letter sets forth vague information that an adoption is used as the basis for the disenrollment. I may be entitled to enrollment apart from the adoption allegation moreover admitting tribes have the right to determine membership.' Those were the two strongest arguments I think from this document. It also says, ‘My specific allegations alleging lack of due process justifying injunctive relief are as follows...' I was told and I remember this phone call, I was told in a telephone call by a court employee that I would only be allowed to look at the evidence against me at the time of the hearing without prior notice of what may be used against me and B, the pre-trial hearing was set prematurely without a scheduling hearing, a discovery period and without adequate time to be allowed for me to prepare a meaningful case based on the merits. Defendants failed to give a fair warning of the nature of the case. This goes on for maybe another couple of pages. It's signed and dated May 17, 2010.

So, we waited again and it wasn't until I'm thinking, yeah, by late December I was really wondering when are we going to be getting some sort of a decision from the judge and an order arrived or was sent to my attorney on January 22, 2011 and it said this, it said, ‘The issue was whether the petitioner met the tribe's membership requirements when the decision to enroll was first made.' In other words, did that initial RBC and did the officials with MCT just make a simple mistake back in 1978 when they permitted this to go through. And the judge's order also said this, ‘Petitioner's request for hearing did not set out the reason she believed she should not be disenrolled, but stated that she understood the fact that she was adopted was the reason for her disenrollment. She requested documents leading to the decision to proceed with the disenrollment.' The order also said that I provided a document from my biological mother that showed I had enough Indian blood to be enrolled and it also said the Band argued that an enrolled adoptee must be born to a member of the MCT. The judge also referred to the letter from the St. Louis County Adoptive Services that stated my biological parents were each American Indian and although the judge did say the document named my father, it didn't. His name...that name has never surfaced. The order says that, ‘Though I am perhaps of Chippewa descent...' That's the word she used -- 'perhaps.' ‘Perhaps she's of Chippewa descent, it's not enough information to conclude that I met the requirement of MCT membership.' And consequently the disenrollment was approved.

So I received that information, my attorney and I talked a little bit about it. I talked with these other attorneys who had been involved and they all said that, ‘You cannot give up at this point. You have to appeal this. You've got to go to St. Paul to Bandana Square and talk to these judges,' and that means of course I need to hire another attorney because by this time Tim Aldridge had left his practice in Bemidji. I thought, ‘What's this going to take? I have to go to my mother again and borrow from her savings for what may be another losing case and I have to try and find an attorney, most of whom don't even want to come anywhere near me. And what else do I have to...I have to get up in the morning for how many months ahead, each morning, and deal with this thing.' I cannot even begin to describe how this weighs on a person. I can't even tell you how it just turns you upside down, not only me, my siblings, my mom who was elderly to begin with, my extended family and friends. And I didn't realize how much it had affected them until I had heard a rumor through my brother that we were suddenly all to be reinstated. And I told one of my friends whose husband is a Band member and she started crying and so I realized that this is something that is really touching a lot of people in a lot of different ways.

What I heard from one of the attorneys is this, he said, ‘Membership is a right. If you are born to an MCT parent...' and no one proved that Deb was not born to an MCT parent... ‘Fond du Lac and MCT shifted the burden of proof to me after more than 30 years following an open enrollment process.' Those were the words I heard from one of the attorneys. In the meantime, personally what was going on, my youngest brother David has Fetal Alcohol Syndrome. He is living in Tucson right now. He has been for quite a few years. The $400...he cannot work. He can't. He has a...he's got a disability that will not permit him to function very well. He's about 12 or 13 years old emotionally and in every other way. So he's in Tucson and he gets the same letter that I did. He goes to my mother and he's crying on the phone. He's already torn up his ID and all of his papers and anything that ever had anything to do with Fond du Lac. He's very distressed about this thing and my mom of course is very distressed about it and what are we going to do about David now -- because that piece...that puny little $400 a month was basically all he had and some food stamps. So my mom and I started paying his bills that year and he's...my heart goes out to him because he lives in like this world of confusion. There's so much he doesn't understand and it is not his fault that he doesn't understand it. Anyway, in December of 2010, David got a letter that he would receive a check for $4,800, which is a year of casino dividend payments. The letter said he was getting a lump sum because he filled the annual dividend form incorrectly in January. He never got one. What he got in January was the same letter that I got. I reminded my brother that I got the same letter he did in January a year earlier about disenrollment proceedings.

So where does this leave us and where does it leave me? It leaves me with a lot of confusion about what I call 'cultural competency,' because in the course of that year and a half of trauma, one of the first things I was told was that in Ojibwe history and culture adoptees have the same status as biological children, that it had been that way for hundreds of years and that you truly were a chosen baby. I was also told that the tradition of adoption...that adoption meant that children were called to the Band for a very special role and that included the Poloski girls, excuse me, but it did. The Poloski girls as well as me and my three siblings all fell under that blanket. For some special reason, the Creator placed us with this Band. We were babies, we didn't have much say about it, but that's what happened and what I learned from these attorneys, who actually were culturally competent and kindhearted and everything else you would look for in an attorney, and I'd never met people like this in my life, but wow they were good. Anyway, a sidebar.

What I had hoped for through this proceeding and somewhere buried in the Minnesota Chippewa Tribe constitution was something that said that traditions matter and that the fate of children matters and that when you get to be in your 50s and 60s, people don't pull the rug out from under you the way they pulled the rug out from under me and my family. My mother had a good solution early on. She said, ‘If the Band wanted to change something, they could have grandfathered all of you in and said, 'From this point forward this is the way it's going to be.'' And I think that would have been a good solution, but of course they didn't think of that. It was just too easy to say, ‘Well, maybe Renee or Robin are making a point.' I don't even...I can't even speculate where they were coming from on that. I don't... was it a cost savings? I don't think it was that great a cost savings, 20 to 40 people. I still see myself as a 'chosen child' and I really wish the Fond du Lac Band was Ojibwe enough to understand what that means. Thank you."

Shawn Frank: Disenrollment: Considerations of Process

William Mitchell College of Law

Attorney Shawn Frank stresses the importance of Native nations ensuring that they establish and operate processes for disenrolling their citizens that is fair and transparent. He also offers some strategies that a Native nation can follow in order to create that fairness and transparency -- and importantly due process -- for those who the nation seeks to disenroll. 

This video resource is featured on the Indigenous Governance Database with the permission of the Bush Foundation.

Native Nations
Resource Type

Frank, Shawn. "Disenrollment: Considerations of Process." Tribal Citizenship Conference, Indian Law Program, William Mitchell College of Law, in conjunction with the Bush Foundation. St. Paul, Minnesota. November 13, 2013. Presentation.

"I'm Shawn Frank. I'm an attorney here in town and I've worked with a number of tribes on a variety of membership issues, one of them being disenrollment. And so I'm just kind of here to provide a legal perspective and kind of to talk a little bit about my experience in the area, but also to kind of talk about the process of disenrollment and if a tribe were to go down that road, kind of some of the things that I think are important for a tribe to consider in pursuing disenrollment.

As probably a lot of people have seen in the news recently and going back a good 10 years, the trend of disenrollments in tribes is on the increase. The first...one of the first big disenrollment efforts was in California with the Pechanga Band and there are tribes in California, Nevada, just recently Washington...at the Nooksack Tribe, began a series of disenrollments, Michigan, and those are ones that have had some prominence because of the number, but I think a lot of tribes have at various points undertaken some of these actions. When you start looking at some of the numbers and some of the statistics on there, some of the tribes in California have disenrolled almost about half of the membership and then the question arises is, what is driving the tribes to do this? And you usually hear one of two answers.

One is the tribe's perspective, that as a sovereign it has a responsibility to maintain a proper tribal roll and it has the authority to determine membership and it needs to enforce those requirements. On the member side, a lot of times it's seen as longstanding family animus or some sort of witch hunt against a family group or opposition or that if there are fewer members, especially if it's a profitable tribe, if there are fewer members, then everyone else's distributions go up and the membership numbers go down. And all of that aside, the Supreme Court has held fast that tribes determine their own membership and in determining that membership also comes the authority to revoke membership, to...you can grant membership, deny it, revoke it or put conditions on it.

So kind of from the legal perspective, the issue of can tribes disenroll is generally an emphatic, 'Yes, tribes can.' And so there's not a huge, I think, legal analysis that goes in there. Of course, every tribe has its own specific constitution and its own rules. There are tribes that...there was a tribe I think in California that before it even began its development of a casino project, it amended the constitution to prohibit the disenrollment of members so they had actually put in a safeguard even before it got to the stage where this issue could have arisen. There are a few other tribes that have some provisions or a tribe's ability to disenroll either by the constitution or the court's interpretation of the tribe's constitution limits it to cases of fraud or mistake. So there are certain limits that tribes do have, but it's limits that they have placed on themselves.

So what I'd like to kind of talk about is the process that I have seen that has worked I guess for some tribes and one of the things I was struck in Deb's [Deborah Locke's] presentation was when she was talking about the process that was due and I think that's such a fundamental issue. And I guess before I get into that, as an attorney representing tribes, the tribes are my client and it's a decision that the tribe makes to pursue these proceedings and it's a hot-button issue and there are a lot of strong feelings about it. So when I'm talking about having a fair process, it's not necessarily saying that a tribe's decision to do...to go down that road or not is something I would support, but representing the tribe, if they've asked me to help them enforce their constitution or to follow through on an action that they believe is lawful then I have an obligation to that client. So from my perspective it's kind of this...sometimes it's an uneasy practice, so when I talk about what things have worked for tribes, I mean what things tribes can do to provide members with enough opportunity to be part of the process before decisions are made.

So one of the things that I think tribes have grappled with is what is actually in their constitution, not only in terms of what is the membership criteria, but also who has the power or does the tribe even have the power to disenroll? I've seen arguments that have said the constitution doesn't include that so the council doesn't have that authority. And if it's a tribe where a lot of the power rests with either membership -- or sometimes it's called the general council -- or that...and it hasn't been delegated specifically to the council or the business committee, does the power of disenrolling or of disenrollment actually lie with the general membership? I haven't seen an instance where it lies with the general membership, but I'm not sure that that issue has been raised in some of these areas and generally it is the [tribal] council who has taken on the decision and the process to begin looking into these sorts of things.

One of the things that I think is really important is -- and some of this is my personal view -- is people have secured membership with the tribe and that has certain rights that come along with it and I think one of those rights is to be secure in that membership. And one of the things that I have seen on occasion is where members are not allowed the opportunity to have the evidence brought to them that what is the tribe's case, why is the tribe doing this, what documents does the tribe have? And sometimes there's an attempt to subvert whose burden it is to prove this. And one of the things, I think, if a tribe is going to establish a process is that the tribe needs to take the responsibility to A, make sure that it has its supporting documents.

There's been...I think there was...was it the Graton Rancheria in California, where literally one day people got a letter in the mail that said, 'You've been disenrolled.' So there was no...there was no warning, there was no opportunity. So what I've seen some tribes do is -- whether it's the council, an enrollment department, a separate board or panel -- will gather kind of the evidence and make a determination whether or not to begin a disenrollment proceeding. And so even at that really preliminary stage, they've shared that information with the member and given the member an opportunity to submit information that they have to kind of help clear that before they even begin the process. And sometimes some of these things are resolved at that stage, but occasionally the tribe will move forward and actually begin, in some instances, begin a disenrollment proceeding. Like I noted, sometimes the tribe just sit down and they just vote and say, 'You've been disenrolled.' So I think in terms of providing a process for the members to submit their evidence to really fight for their membership...because a lot of times the tribe's information could be wrong or it's incomplete, and so sometimes I think having that initial dialogue before the process or a proceeding begins is really helpful.

One thing I've also seen in some of these proceedings is if there is a hearing, I've seen instances where members are not allowed to have...be represented by counsel, where there were no outside people allowed in the proceeding, there was no recording of the proceeding, they weren't allowed to see the tribe's evidence, they weren't allowed to submit anything additional at the hearing. So there were a number of things, and I don't think you need to be a lawyer to realize that there's a big problem with having due process and meeting those sorts of requirements. So I think if a tribe has a process where it is going to conduct disenrollment proceedings that it should provide as many safeguards to the member as possible. I'm also aware of a tribe that -- in addition to being able to have a hearing where you get to submit evidence -- you get to call witnesses, you can ask the tribe for its evidence so you have some discovery rights, you can be represented -- I forgot where that was going -- but to have built in enough safeguards to allow the person to present their case so that it's not done in a vacuum and it creates a little more openness and transparency to the proceeding. And I think when you read a lot of media accounts of some of these things, that is usually the thrust of the article is that it's based on greed, they just want people off and nobody got a fair shake. The first two things I don't think lawyers or the tribes can deal with, but at least providing notice of a hearing and adequate safeguards at least prevents that perception from continuing that the tribe has not operated in an open manner.

And I think kind of one of the things when I was talking with Colette [Routel] about coming and doing this was from a legal perspective that's one issue, but then when you talk about the moral imperative that tribes have from a cultural component, it's kind of hard to, I think, kind of sit up here from a legal perspective and just kind of try to put disenrollment in a vacuum because there is such a human element. And one thing I also think that is critical is the more independent the fact finder can be, that it isn't the tribal council, that it's not the enrollment director, that it may be a panel of elders, it could be an independent person. I know one tribe that actually has an administrative process where they have law trained judges who evaluate the evidence based on the tribe's constitution and the membership criteria and they're the ones who make the decision, it ultimately goes back to the tribe but that has set in part an administrative record so when the court reviews it, there's actually a lot more information and a lot more process and I think that has allowed the tribe to document that to show that this isn't happening in a vacuum, this isn't a secret star chamber. These proceedings are open and although they may be...people may question why the tribe is doing them, at least the tribe has taken the steps it needs to kind of protect itself.

Kind of moving through the process, I guess one of the ultimate things is ultimately who is the decision maker and one of the things I've heard people talk about is, 'Well, if the council makes the decision, what recourse do I have?' And sometimes there is nowhere else to go, if the council has made its decision then that's the last step. And a lot of people have talked about, 'Well, there should be some sort of court review after that where the court actually will end up making the determination.' And one of the things I've always been struck by that is if the council is charged with ensuring a proper membership, but it's ultimately the judge or the judiciary who's making that decision, does that somehow run afoul of where the authorities in the constitution lie? And so sometimes I think the tribes' constitutions actually set up a process where there probably can't be judicial review because then ultimately the constitutional authority is being exercised by somebody that it wasn't intended to be and I've seen that a lot of times ultimately too in, especially in gaming regulation where you have licensing decisions being made by gaming commissions who are charged with regulating, but then they're challenged to the court and it's ultimately the court who's making the determination of license and eligibility, but they're not the regulator. So it kind of creates this strange dichotomy of, you want more review and you want process, but sometimes that's not possible.

And I think just in closing it's such a divisive issue and each tribe is unique and its history is unique and devising a process to review membership decisions...I think each tribe has the ability to craft whatever they would like, but at a minimum, I think that there'd need to be certain safeguards for the members and it's not a one-size-fits-all approach. So I look forward to questions here when we have the time. I'm sure there will be a few and I would like to turn it over to Sharon [Day]."

Honoring Nations: Robert Yazzie: The Navajo Nation Judicial Branch

Harvard Project on American Indian Economic Development

Chief Justice Emeritus Robert Yazzie of the Navajo Nation Supreme Court talks about the Navajo Nation Judicial Branch's application of Navajo common law in its jurisprudence as an example of the importance of Indigenous cultural values and common law into the governance systems of Native nations.

Native Nations
Resource Type

Yazzie, Robert. "The Navajo Nation Judicial Branch." Honoring Nations symposium. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Sante Fe, New Mexico. February 8, 2002. Presentation.

Andrew Lee:

"Thank you, Steve [Cornell]. Now I'd like to call to the podium Dr. Manley Begay, who's also a co-director of the Harvard Project on American Indian Economic Development and he's also the director of the Native Nations Institute at the University of Arizona who will introduce our next speaker."

Manley A. Begay:

"Good morning everyone. Hope everyone had a real nice sleep. I did. For those of you that are about six feet, three or four inches or taller, I have a real important question to ask you. How do you stand underneath those showerheads? It's a real funky showerhead. Did you guys notice that? When you turn it, it turns off and you have to have it going down. I thought it was kind of interesting.

Let me just sort of say a little bit about what Steve mentioned. When I joined the Harvard Project back in 1988, it was really quite interesting that these two white guys were out running around Indian Country trying to figure out things. And they were actually lost. And when I showed up, I showed them the way. Sometimes I regret it. I've known these guys for so long, we joke about one another. They joke about me. They say, 'We've known him for so long that we remember when he had dark hair.' So I say, 'Well, I remember when they had hair.' It's very interesting how things have occurred down through the years.

This next presentation, what's every interesting about this is that you have essentially, under some trying circumstances, an individual or a group of individuals that rose to the occasion to really set up a mechanism by which to ensure that government, the Navajo government in this case, had a checks and balance system and had a separation of powers. And it was really an outgrowth out of some trying circumstances, essentially a mini revolution. It's unbelievable to hear the stories underneath the story. The amount of courage, the amount of tenacity, and the amount of foresight that was used by Chief Justice Robert Yazzie and the other judges in the midst of some turmoil in the Navajo Nation, and it's not unlike countries throughout the world. And in this case, in the world's most wealthiest nation, you have these problems and issues. And interestingly enough, the Navajo Nation, through the leadership of Robert Yazzie and others, rose to the occasion and handle issues, resolve disputes that were pressing to Navajo Country and they set their mark.

It was really a story about how we as Indian people can resolve our own issues without outside interference. And stories we hear about problems and turmoil throughout the world really points to the make or break characteristic of nation building, which is a strong and independent judicial system with strong and also well trained leaders. And I think the Navajo Nation court system is an example of that among other court systems as well out here in Indian Country. I would venture to say that the Navajo Court System is as strong or stronger than some of the best court systems throughout the world. And it's because of that the Navajo Court System was recognized. And interestingly enough, Robert Yazzie and others stood their ground and created for all of us an innovation, a creation that will last for a very, very long time rooted in Navajo common law as the law of the land, which is the way it should be. It's really an example of a culturally appropriate leadership as well as a culturally appropriate institution.

And with that I'd like to introduce Robert Yazzie. He is Bit'ahnii, that's his mother's clan. His father's clan is Tódichí­í­ní­í­. His nalí­, or his relatives on his dad's side, is Kinyaa'aanii and on his mother's side is, his mother's father's clan is íshiihii. So íshiihii and my clan, Ma'ii Deshgizhnii are the same clan so we call each other Cheí­í­ or grandfather. Chief Justice Yazzie has been on the bench for 16 years and has been a chief justice for 10 years. He's a graduate of the University of New Mexico Law School back in 1982 and also is a graduate of Oberlin College back in 1974. So with that, the Honorable Chief Justice Yazzie.

Robert Yazzie:

Yá'át'ééh! I was going to say como esta? I have to say something like that in Santa Fe. I wish to thank Mr. Andrew Lee -- and I always have to look up to him when I talk with him -- for this opportunity to invite the Navajo Nation judicial branch to give...to make comments about the contribution of the branch to good governance.

As an opening I would like to talk about Justice [David] Souter's concurrent opinion in Nevada v. Hicks, which is very troublesome to all of us. He said, when this past summer, Associate Justice O'Connor, Sandra Day O'Connor and Justice Breyer came to the Navajo Nation to observe the Indian justice in Indian Country. And much of what they said is different from what the way Justice Souter said in his concurrent opinion. He said, 'Non-Indians are in danger of unwarranted intrusion on personal liberty in Indian courts.' And he gave a basis for that and said, 'The U.S. Bill of Rights does not apply to Indian nations. And when you look at the Indian Civil Rights Act, it does not include all its guarantees. Indian courts apply customs, traditions and practices.' And he said, 'This is very difficult for non-Indians to work out, to understand.' He said, 'There is no appeal of a tribal court decision in state or federal court or removal to the federal court.' And the last one he said is, 'Tribal courts are often subordinate to political branches of tribal government.' All he's saying and all what Justice O'Connor and Breyer said, 'We don't trust you, period.' So it's interesting what Justice Souter had to say in his concurrent opinion. It flies in the face of the work being done by the Harvard Project on American Economic Development and its members. While that's the case, if you read the reports, the studies, testimonies of the project, and what we just heard just now, it works. And that's how we see it and that's our position and it's very important and the only thing that we need to do is go to Congress to undo what the U.S. Supreme Court did to us. We have to show to Congress that we have evidence that sovereignty works. If federal court doesn't trust Indian courts, then Congress must.

It is interesting that the contributions of the Navajo Nation judicial branch has made to good governance involves the very thing Souter complains about: customs, traditions and practices, and we call it Navajo common law. He said, 'This is unusually difficult for outsiders,' and I don't agree with that whatsoever. When we look around we see people, people who are of fine mind, people who are distinguished, who say that the approach, the traditional Indian law, is the best you can ever have when it comes to approaching problems. And there are articles, for example the American Journal of Comparative Law, Robert Cooter, Wolfgang Fickinger of the University of California at Berkeley. They praise the system and there are other writers who say that when you look at the Indian world, you find models like Navajo peacemaking is a leading model. And if you look at our Navajo common law jurisprudence, you will see that we have something in common with state courts of last resort decisions.

In [the] 1970s, U.S. Supreme Court gave a very strict reading to the U.S. Bill of Rights. They denied certain civil rights and liberties. State courts reacted and said, 'Well, then, we're going to read similar provisions in our state bill of rights in a way that will better serve the rights of our citizens.' And when you look at the Navajo situation, you will see that we do have a Navajo Nation Bill of Rights. And if you just look at the Navajo notion of basic rights, you will see that there's more protection given than what the U.S. Constitution has to offer. The Navajo, the 1985 Navajo Nation Bill of Rights, guarantees the right to life, liberty and property as fundamental right and we have the Equal Rights Amendment to guarantee gender equality.

Life, liberty and property, who's definition should we use? When American law talks about life, it talks about situations where the government takes someone's life. When we [Navajo] talk about life, we say iiná, and iiná is not just about living. It's about a way of life. Iiná is located in the west and if you have life after you prayed about it and reflected to form good thoughts from the east Nitsáhákees, the thoughts. Your mind starts from the east every morning and if you develop a good plan based upon prayer, reflection and discussion, what we call nahat'á from the south direction. So life means much more in Navajo thinking than it does in American constitutional law. What about liberty? In Navajo we say t'áá bí­ bóhólní­í­h, t'áá bí­ bí­déét'i'. It means, 'it's up to him.'

The Navajo Nation Supreme Court has made it clear in several opinions that the Navajo concept of liberty guarantees more freedom than the Anglo concept. And when we talk about property, I have seen paranoia in discussion over Navajo Nation economic development because people say they are afraid of the Navajo Nation council messing with home site leases that are mortgaged. Some refuse to recognize the Navajo Nation courts would not permit that under our Bill of Rights. In addition, we recognize customary property rights and Navajo common law is very concerned about individual's right to property. So as the Navajo Nation, we've talked about individual rights, we also talk about collective rights, and those two are not isolated. They work hand in hand and they work very well. As it is with several states, we give a more expansive and better reading to our Bill of Rights. It is one which responds to Navajo expectations. The Navajo Nation Supreme Court has said that the expectations of the Navajo people are a source of law under our due process clause. So a question here, do American courts say the same thing about the expectations of American people in decisions.

In 1982, things weren't working out quite as well with the courts. The cases were going up and up. Today we have 76,000 cases and people are becoming more and more dissatisfied when we as judges render decisions, lawyers are forever fighting. So what about looking at what we used to have 200-300 years ago? There is a system that lived, that was in existence at that time. Locked out was just locked behind closed doors. When we look at the system that was there from time immemorial, we saw that there were decisions made about people. Who makes the decisions about important aspects of people's lives is an important aspect of Navajo common law is what we learned in 1982. While we adopted an adjudication system, adversarial system where judges make the decision, or all decisions, we also had a method for people to make their own decision and we find out that the more you do that there's good decisions, there's strong decisions, there's better decisions, decisions that last a long time, something that does the job, something that gets to the bottom of things. So we have referred cases to that system where the people can look at it, make the decision. Something that we couldn't resolve in court we'll resolve over there.

So who would have thought in 1982 that by the year 2002 the United Nations would be looking at a traditional Indian method of dispute resolution as a model? Who would have thought that today legal scholars would be taking a serious look at traditional Indian law as a source of law and justice and vengeance? One of the very positive aspects of the Harvard Project on American Indian Economic Development is the fact that it not only promotes Indian nation sovereignty, it points out to Indian traditions as a source of economic success. So when we talk about good governance movement, we have to be serious because it is something, it is a movement that's going on at the international level. There are positive aspects of it in the international law as people are talking about subjects such as inclusive government, participatory democracy and the rules of law.

What contributions did we make to good governance in the Navajo Nation? Now you see Navajo legal terms and opinions, legislations and law articles. When we look at our Bar Association, we have 400 members; we have non-Indian, non-Navajo, as well as Navajos. So as a justice when we hold oral argument, we now can see that people are bringing claims for defenses based on Navajo common law and they even use Navajo legal word or two in oral argument in court. We now have a body of case law in published opinions that answers Justice Souter's concern about understanding traditional Indian government. We spell it out clearly in decisions written in English that are available for any interested reader. As for federal judicial review of the fairness of decisions, what is there to review? Our decisions are clear. They show the principles which apply and why and they give predictability to court decisions in the future and people are very happy about that.

At end, what we call sovereignty isn't something given to us, you or I. When you read the law definition, it's pretty bad because it talks about absolute power, absolute authority. Our definition is quite different. It speaks to the dignity and individuality of everyone. It talks about sharing and caring. It embodies respect for the individual. It promotes participatory democracy. Question: do we face any dangers? Answer: certainly. There are some people who forget the role of a court is a step between the individual and his or her government when there are abuses. There are those who would deny that judges have a sacred obligation to uphold fundamental rights guaranteed in both Navajo Nation Bill of Rights and Navajo common law. There are a few who mock our interpretations of due process from a Navajo point of view. They are not Navajos. If due process is fairness, then what is fair? There's a saying in a cartoon. The character says, ask the magic mirror, 'Mirror, mirror on the wall, who's the fairest of them all?' The answer, 'The Supreme Court.' We like to think it's the Navajo Nation Supreme Court. That is our challenge: what's fair [and] what our traditions and sacred wisdom tell us as they have handed down to us in our oral traditions.

We were honored by an award based upon the Navajo Nation judicial system's promotion of Navajo common law principles and procedures. That is a high honor indeed. As you know, the late Al Harris received that honor. He's no longer with us today, but he did his best to get us where we needed to be. It is somewhat frightening too because the honor is a challenge to maintain our efforts. The first justices of the Navajo Supreme Court have now retired. They have set the high standards for which we were honored. I follow them, others will soon follow me. I can only hope that the standards we have put in opinions, court rules, judicial policies on Navajo common law will stand the test of time and I think they will. Why? If Navajo common law itself has stood the test of time, surviving imposed government systems, imposed courts and other imposed standards and the tax on our sovereignty, it will survive. People like Kit Carson are alive and well, and all that stands between us, and a distinction as Indians, is our law. That is why we fought for it and put it in place in our judicial system.

What is good governance? If you make reference to your Indian mind, in our case to the Navajo mind, you can look at all four directions and you can read things and one thing that you can read for sure is when you look at yourself you know who you are, you know where you've been, you know where you're standing, you know where you're going, that you are a reflection of what's out there, the four directions. It is the Navajo common law principle of order within the four sacred mouths. So we say bee haaz aanii and that's a word to say it's Navajo, it's law. But if you look at the term bee haaz aanii and ask the question, what does it mean? It'll take you a lifetime to explain what it means. Simply it...life comes from it. Bee haaz aanii does not mean you cannot do this, you cannot do that and you cannot do that. Bee haaz aanii means, what is permitted. Bee haaz aa. So if we stand with that, we know where we are, we know our foundation, we know our future. Thank you."

Native Nation Building TV: "Why the Rule of Law and Tribal Justice Systems Matter"

Native Nations Institute

Guests Robert A. Williams, Jr. and Robert Yazzie discuss the importance of having sound rules of law and justice systems, and examine their implications for effective governance and sustainable economic development. They explore these issues and their role in creating a productive environment that encourages investment of all types from Native and non-Native citizens.

Native Nations

Native Nations Institute. "Why the Rule of Law and Tribal Justice Systems Matter" (Episode 3). Native Nation Building television/radio series. Native Nations Institute for Leadership, Management, and Policy and the UA Channel, The University of Arizona. Tucson, Arizona. 2006. Television program.

Mark St. Pierre: "Mark St. Pierre. Hello, friends. I'm your host, Mark St. Pierre and welcome to Native Nation Building. Contemporary Native Nations face many challenges including building effective governments, developing strong economies that fit their culture and circumstances, solving difficult social problems and balancing cultural integrity in change. Native Nation Building explores these often complex challenges in the ways Native Nations are working to overcome them as they seek to make community and economic development a reality. Don't miss Native Nation Building next."



Mark St. Pierre: "On today's program, we examine the critical role that tribal justice systems and the rule of law play in providing the necessary foundations for effective governance and sustainable development, and what happens when those systems and rules of law are poorly designed, implemented and understood. Here today to share their thoughts in this important topic are Robert Williams and Robert Yazzie. Mr. Yazzie, a citizen of the Navajo Nation, is the Chief Justice Emeritus of the Navajo Nation Supreme Court. He is also a visiting professor at the University of New Mexico School of Law and has served as a Navajo English interpreter for the U.S. District Court. Mr. Williams, a citizen of the Lumbee Nation, is the E. Thomas Sullivan Professor of Law and American Indian Studies at the University of Arizona's James E. Rogers College of Law. He also serves as the Chief Justice of the Pascua Yaqui Tribal Court of Appeals and the Judge Pro Tem of the Tohono O'odham Nation. Welcome, Mr. Williams and Chief Justice Yazzie. Thanks for joining us."


Robert Williams:  "Thank you."


Robert Yazzie:  "Thank you."


Mark St. Pierre:  "In your opinion, why is the rule of law so critical to Native nations?"


Robert Williams: “Well, there's two primary reasons that you want a court system that treats people fairly and issues decisions that people can make their own plans for the future on. The first is the internal aspect. The people of the nation have to have confidence in their court systems, they have to believe that if people are arrested for crimes that they'll be prosecuted, that they'll be treated fairly, that their rights will be recognized and then victims are protected. They have to understand that their contracts will be enforced in their courts. Externally, you also want the outside world to have confidence in the nation's justice system for business relationships, for people that might be invited on to the reservation, for a whole host of reasons -- relationships with governments -- and so those are the reasons that most tribes do invest in court systems and legal systems and tribal courts are working so hard on trying to enforce the rule of law."


Mark St. Pierre:  "Robert, at [the] Navajo Nation, your approach is kind of blended with Navajo tradition and common law. How would you respond to that question of why is the rule of law so critical to the Navajo Nation?"


Robert Yazzie:  "My experience says that when Navajos go to court, they expect certain things to happen. One is to say shí­ né' en dool jool, mso-fareast-font-family:Calibri;mso-fareast-theme-font:minor-latin;color:#222222;
AR-SA">  color:#222222;background:white">means my mind will become at ease when this problem that I have is addressed and people look for a satisfied result. So when people feel confident with the court system, especially [the] establishment of relationship with the judge, knowing that the judge's role will be carried out to bring peace to the problems at hand."

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Mark St. Pierre:  "We're all away that politics creep into court systems or tend to creep into court systems in all societies, but what is the impact of politics creeping into tribal court systems?"


Robert Williams:  "It can be particularly insidious. One of the big problems today in Indian Country is that tribes are saddled with constitutions and systems of government that really were imposed upon them 60, 70 years ago. Yet, at the same time, when those systems were imposed, many of the checks and balances of these western-style systems of constitutional democracy weren't incorporated. One of the most important is an independent judiciary, and most tribes today do not have an independent judiciary under their constitutions, and so where judges don't have the confidence to make decisions without looking over their shoulder whether a tribal politician might be unhappy, whether they might lose their job, justice suffers in any system, and that's particularly so in Indian Country."


Mark St. Pierre: color:#222222;”Robert, what's your take on that?"


Robert Yazzie:  "I hear a lot of criticism. I think some of them have merit and some of are just pure assumption, because the outside world really doesn't understand exactly how a tribal court functions. If the outside world could really look at the details of how a tribal court functions, maybe people can appreciate what the tribal courts are going through. I've heard time and time again that there the politicians or the tribal council in any situation make decisions for tribal judges. I don't think that...that may have been true, but certainly today I think the politicians, the tribal politicians have really come to terms with their role. With the Navajo Nation, we had a case involving a pay raise and the public took issue on that and brought action before the court telling the Navajo Nation Council of 88, 'The process you followed to get what you want, to give yourselves a pay raise, is unlawful.' So the court was there to make the correction, and the correction it made is that they affirmed what the public stood for. Today, right now, the Navajo Nation Council have accepted that. I don't think they really liked the decision, but it's a decision that they choose to live with and I think they have taken...they take the courts very seriously. When it makes a decision, they want to give it support, to give it growth."


Mark St. Pierre:  "Rob, you've worked with a number of different tribes across the country. Can you give us examples of what a politicized justice system has done to perhaps hamper or derail community development and economic development, nation-building efforts?"


Robert Williams:  "Yeah, and I think it's important to recognize in a number of tribes, the Navajo are an excellent example, have moved toward an independent judiciary separating the tribal courts from tribal politics, but there are still a number of tribes out there that it's common practice sometimes for tribal elected leadership -- you may have a situation where the elected leadership changes every two years and then the courts change because people like to bring in folks they're familiar with, and so the expertise and independence that you've built up is lost. There are other situations where the business community both on and off the reservation just doesn't have confidence in the judiciary and doesn't feel that their contracts will be enforced so they'll be treated fairly, and so they may go to the tribal government and say, 'We want to have you waive your sovereign immunity. We won't sign this contract unless it's going to be litigated in state courts.' Then what you begin to get is just a general undermining of the rule of law throughout the entire reservation, and so when tribal governments do think that they can interfere in tribal courts and tribal law, it has this cascading effect, it has implications throughout the entire reservation economy and society."


Mark St. Pierre:  "How do you separate, what are good ways to create that true separation of the justice system from the rest of the tribal government?"


Robert Yazzie:  "I think in a smaller population-sized tribe it's much harder to deal with the separation of powers issue because everybody is related somehow. It's very hard to separate. But in a much bigger tribe like the Navajos or the Cherokees, I think they've pretty much come to accept what the functions of the different branches [of] government that is in place. The Navajo Nation doesn't have a constitution, so we don't have a constitution that says, there shall be an executive body, judicial body and legislative body. The way the code has been put together just gives that impression there is these separate branches, and I think that even though there are problems -- like in any other government there's problems trying to stay within your bounds and to carry out your functions. But I think the Navajo Nation has really gone through some trying times. As long as people understand that judicial independence means being able to make a decision independent of all forces -- government or political forces -- that is a decision that you can make in good conscience. 'A good decision made so you can sleep at night,' is what our boss used to always tell us when we were on the bench."


Robert Williams:  "And following up on that, there are specific steps that tribes can take. For example, I think the Chief Justice makes a great point that in smaller tribes, it's more difficult to achieve separation of powers cause everybody knows everyone and it may be that in that situation lifetime tenure for judges which is usually one of the ways that you achieve judicial independence might not be totally appropriate, but set terms, four years, five years. Make sure they're staggered so they don't necessarily coincide with the tribal government's election cycle. And then you have a really good system of review."


Mark St. Pierre:  "So what you're suggesting is that the judges perhaps be elected by the tribal membership?"


Robert Williams:  "Or if they're going to be appointed, let's appoint them for set terms instead of oftentimes what happens it's a year-to-year contract, then that can really erode judicial independence. But you also need a system of professional education, you need to make sure your judges are out there getting the latest education they can, that they're getting certified, that you're reviewing. There's a process. The Navajo courts have a great process where judges are regularly reviewed by the chief justice and reports are issued, you can evaluate people fairly and then put them up before the council and see if they merit being reappointed again, and that's a good way to try and get politics separated out of that process."


Mark St. Pierre:  "Let's take a look at recall. If, for instance, in a smaller tribe the people themselves are not satisfied with the performance of a judge and the pressure builds up consistently that this judge is not really working well within tribal tradition or within the beliefs or value system of the people, what are systems to recall judges?


Robert Yazzie:  "We follow a process that evaluates judges when they complete their two-year probation and at the end of their two-year probation, the probationary judges must go through a judicial performance evaluation where the public have their input or the staff of the judge has their input, where other practitioners who go before that judge has their input. This is a fairly new process, and through that process, some of the judges have been removed by the standing committee based on the process that's now set in place. So we don't really...we haven't had to do any recall. I think the appointment process has enough in it that it takes care of those problems."


Robert Williams: “Recall is one of those areas where I think you can really talk meaningfully about the difference between western systems of self-government and many Native systems. In western systems, the recall is a check of the popular democracy. A lot of legal scholars would argue that recall of judges is a bad thing because you want judges to make decisions whether or not they're against the popular will. In tribal systems, it may be a bit different, where you have traditions of consensus and traditions of equality and egalitarianism spread out across all members. So it may well be that recall could function as an effective check on what we might call judicial activism. Because these systems are so new, many times you're applying foreign systems of law and as a judge you might be a member of the tribe, you're trained in a white legal system, but that doesn't necessarily mean you understand what justice means for the people and whether or not it's culturally appropriate. So recall may well be one way that tribal communities can take back control over their legal systems."


Mark St. Pierre:  "Could either of you talk for a little bit about what you think the training or education should be of tribal judges. It's obvious that every tribal judge is not going to have the opportunity to go to law school for instance."


Robert Williams:  "I think that what's most important is that the tribal judge, particularly at the trial level, understand the community he's working with and understand the norms and values. Native Nations Institute talks about this idea of cultural match that if the rules and the principles and the laws that are being applied on the reservation don't match the cultural expectations and what people in that community think is right, they're not going to be obeyed. And so I think there's a really good argument for making sure your trial judges particularly understand the communities. At the appellate level, there you're starting to get into issues of constitutional interpretation, statutory interpretation. Again, it may not necessarily be that an appellate judge has to be a lawyer, but this has to be a person that receives training in many of the excellent programs that are available in national judicial colleges, at law schools, at universities where tribal judges at the appellate as well as the trial level can go and get educated by professors and experts and understand what the really important issues are to perform that function well."


Mark St. Pierre:  "How does Navajo handle the training of judges and people that work in the court system?"


Robert Yazzie:  "Earlier you asked a question about what should...that there is a great need for tribal courts to learn the basics of law, rules of law. But we don't stop there. I think what Rob was telling me, he talked about doing things pursuant to the cultural norms. To me what that means is for a judge who is well-trained, like say this is due process and under the constitution, as long as a person...a person gets due process and if the procedural requirements are met, minimal, that's good enough. But in the Navajo way we don't stop there. We take this concept of due process and take it over to the Navajo context and say, 'How meaningful is this due process when we apply it to this situation. What's the end result in applying this concept to this situation?' And that is what the thinking process goes through and that should be the way that judges are trained, is to have command of the western legal concepts. But if we stop there, then we're in big trouble. If we stop there period, then we're not doing anything to foster the growth of tribal courts."


Robert Williams:  "We do a lot of advising of tribes at the Indigenous Peoples Law and Policy Program and when they ask, 'Well, what can we do to stimulate economic development?' I tell them, 'Invest in your court systems, invest in the rule of law, invest in tribal judges.' What you'll see is, as the Harvard Project on Indian Economic Development showed, there's a direct correlation between tribes that have strong, effective judiciaries and the economic development environment, employment rates, education rates -- direct correlations. Tribes that invest in their court systems, to do the types of things that Justice Yazzie is talking about, are successful tribes."


Mark St. Pierre:  "How would a Navajo citizen who wants to be a judge for instance get that training today?"


Robert Yazzie:  "I think right now we are trying to do as much as we can to provide that opportunity. There are Navajo -- the young people are really looking for legal training, and right now I'm teaching for the Crown Point Institute of Technology, teaching the basics of law and an introduction to law, what that means and then how to think like a lawyer, how to make lawyer noise, how to prepare for bar exam and also at the same time bring in the tradition. You have this rule of law under the American Anglo system and here's the result. Then go across the street and see how the Navajos would approach the same problem. This is the process that or emphasis...this should be the emphasis in learning about law in Indian Country."


Robert Williams:  "And the Chief Justice is really focused on why I think being a tribal judge is a much harder job than being a regular judge in the Anglo system, and it may well be the hardest job on the reservation because on the one hand, as he explained, your tribal judge has to know the western legal system. They have to know western requirements of due process. Every criminal case in a tribal court can be reviewed on habeas corpus by a federal district judge, so you have them looking down at you. On the other hand, you also have to know Navajo custom and tradition or O'odham custom and tradition, to make that law relevant to the people whose lives it's affecting and it's constraining. And so where do you -- it's easy, you can go to law school, you can go to a judicial training center to learn about western jurisprudence and civil procedure, but where do you go to learn how to be a Navajo, where do you go to learn how to be Lakota. That's a knowledge that has to come from the heart, has to come from tradition, has to come from a community that really works on keeping that knowledge alive and making it work for them, and I think the most successful tribal court systems you see are the ones that do both those tasks, that can run the court system in an efficient effective way so that people appreciate that it's there, it makes the decisions it needs to make, but it's also making culturally appropriate decisions and decisions that are helping to move the community forward, not backward, not getting it entrenched in politics and internecine fighting that we see too oftentimes. And that's why it's such a hard job."


Mark St. Pierre:  "Let's take a look at that for a minute. The Navajo court system is well known for its incorporation of Navajo common law in its jurisprudence. How is that common law incorporated at Navajo just so our viewers can understand that alternative system?"


Robert Yazzie:  "There's two ways we use the Navajo common law in applying common law to situations. The grassroots people have their own process, the lifeway process, the peacemaking process, and they have their own facilitator who runs the process, and in that process people are able to find the problem at hand and be able to talk things out. Here's a problem and different people can say, 'This is the way I see the problem from my perspective.' And they're able to reach a solution. So in the talking things out is where they begin to talk about values and principles, and those principles and values are the underlying basis for what makes Navajo a common law. More recently there's been a move through our own rule of law to say in every case situation, the Navajo common law shall be the law of preference. So when practitioners come to court and that's what they're told, 'Yes, this may be the Anglo position, but what is the Navajo rule of law as a matter of custom?' So in terms of incorporating there may be an issue, an issue like, for example, a judge may hear a criminal case. There's a recent decision made by the Navajo Nation Supreme Court that dealt with this concept hozho. There was an issue how the police officer handled the defendant. He didn't really...there was a question about his reading of the rights to the defendant wasn't correctly done. So when the Supreme Court looked at those facts and they thought about hozho. color:#222222;background:white">Hozho  means do things cautiously. If you are going to explain, make sure that they understand what the process is about, cautiously and with respect."


Mark St. Pierre:  "So it's not a minimal just reading of the rights and as quick as you can read them and then throw the handcuffs on the guy and throw him in the car."


Robert Yazzie:  "...And to be honest about what you're trying to accomplish with that defendant."


Mark St. Pierre:  "So the defendant is treated with respect as a human being."


Robert Yazzie:  "Exactly."


Mark St. Pierre:  "you've worked Rob with a wide variety of systems. What are some other examples of positive Native influence on judicial systems, cultural influences, cultural norms that you've experienced that you could share?"


Robert Williams:  "Yeah. I teach Indian law and one of the things that we make sure students learn about is the development of what we call tribal common law, the use of tribal customary law, not only by the Navajo but a number of tribes. We're seeing a number of tribal courts recognize the need to incorporate custom and tradition as the common law of the tribe. The Hopi, for example, their Supreme Court recently decided a case on the issue of standing. That's a technical legal term meaning basically who can bring a case, who has a right to sue the government. As we know, in the United States, it's very hard to get standing. Congress can pass a statute and you would like to go to court and sue about it, but it's very difficult, you have to show a real interest. The Hopi considered that issue of standing and who can bring a suit against the Hopi tribal government and they said, 'You know, the western concept is just way too narrow.' We are a people that believe that everyone has a say and that government is accountable. And so you saw the Hopi Supreme Court diverging from western jurisprudence and enacting a broad principle of standing which fits very well. It really is a burgeoning, a growing movement, this use of tribal customary law and it's really improving the administration of justice in Indian Country."


Mark St. Pierre:  "Robert, what prompted Navajo to completely revise the way they do their court system and incorporate common law? When and how did that come about?"


Robert Yazzie:  "Well, we had so many laws that has been imposed on us since the western court systems came in 1892. But in 1950 the Navajo Nation said, 'Enough is enough. We are not...we're no longer going to put emphasis in applying federal law to solve our cases. We are going to do things the Navajo way.' The Navajo leaders back in 1982 said, 'Well, let's look at how business...law...decision-making was done 100 years ago,' and they found out that relations had a big role, that the idea of having relations in the dispute situation meant something, and also given the relations as we're talking about here, talking things out. Without control, without a judge, without lawyers, let the relations feel that they own the problem. Let them come up with solutions. Never mind how long it will take and how many days it will take. So when people are talking things out, they're able to make some connections. You can have a longstanding dispute like land. Land dispute is the hardest thing to solve in the adversarial system, and some of them never get resolved. But lo and behold, when you give the relations the opportunity to tackle that problem, they do go back in time and say, 'This is where the problem lies and then we need to come back to terms with one another, treat each other like relatives, treat each other with respect.' And treating each other with respect, [having] a system that addresses people as humans is very, very, very important, and I think...and I see that as the future of tribal courts. We've gone too far with the western way and I think the adversarial system had its days and it needs to change and I think, I hope in my lifetime that I will be able to see that this lifeway process merge with the western system and the tribal court center and I think that will show the world that Indian people have something, they have something to contribute to make a difference where people are always fighting one another."


Mark St. Pierre:  "Just as kind of a wrap-up question: we've talked about court systems that function properly, when you live in a nation where the court system is working properly, what are the ramifications for the people of that nation in terms of their attitude towards their own nation and their own potential?"


Robert Williams:  "There's a sense of law and order, that you have personal security, you have security in your property, you have security in your investments. Indian people are entrepreneurial, too. I think anybody who spent time in an Indian community knows that Indian people have the ability to go out there and invest and work hard and create a life and create for their families. They want the same thing as everyone else does, so there's those positive benefits. There's a sense in which tribal sovereignty is strengthened, because every Indian tribe that can get its act together in this area and have effective legal systems shows the world, and as Justice Yazzie just said, that Indian people have something to contribute. And I think if tribal governments are really going to take their place in 21st-century American society that we need to really work hard in this area of creating effective tribal justice systems that make people feel not only safe and secure but proud of what it is their tribe is doing."


Mark St. Pierre:  "We want to give a heartfelt thank you to Robert Williams and Robert Yazzie for appearing on today's edition of Native Nation Building, a program of the Native Nations Institute for Leadership, Management and Policy at the University of Arizona. To learn more about Native Nation Building and the issues discussed here today, please visit the Native Nations Institute website at www.nni.arizona.edu/nativetv. Thank you for joining us and please tune in for the next edition of Native Nation Building."


Disenrollment Demands Serious Attention by All Sovereign Nations

Indian Country Today

For most people, their sense of who they are–their identity–is at least partially defined from connection to others and to a community. When individuals are forced to sever those connections, the consequences can be devastating. Unfortunately, all too often in tribal disenrollment conflicts–like the one currently unfolding in northern Washington, where the Nooksack Indian Tribe is in the process of disenrolling 306 of its members–the fundamental issues revolve around individual and community identity. Handling these types of issues are of enormous consequence and it is the obligation of any true government to address them with the utmost seriousness...

Native Nations
Resource Type

Seelau, Ryan. "Disenrollment Demands Serious Attention by All Sovereign Nations." Indian Country Today Media Network. December 10, 2013. Opinion. (https://ictnews.org/archive/disenrollment-demands-serious-attention-by-all-sovereign-nations, accessed April 4, 2023)

Judge: Tribal courts can incorporate culture, but need independence, due process


Tribal courts on the nation’s Indian reservations must make due process of law and independence hallmarks of their justice system, U.S. District Judge Ralph Erickson told a gathering of judges and other tribal court personnel in Grand Forks Thursday. Tribes can and should incorporate such Indian cultural traditions as “peacemaker courts” and “talking circles,” Erickson said, and those features should be respected by people outside the tribes...

Resource Type

Haga, Chuck. "Judge: Tribal courts can incorporate culture, but need independence, due process." Grand Forks Herald. June 20, 2013. Article. (http://www.crookstontimes.com/article/20130621/NEWS/130629909, accessed June 24, 2013)