Robert Yazzie

Robert Yazzie: Traditional Principles of Leadership

Producer
Native Nations Institute
Year

Former Chief Justice Robert Yazzie of the Navajo Nation Supreme Court provides an overview of the traditional Diné governance system and specifically the leadership principles that Diné leaders relied upon to make sound, informed, strategic decisions in consultation with and on behalf of their people. He offers a convincing argument for Native nations to consult their traditional governance systems in order to meet the challenges they face today.

People
Native Nations
Resource Type
Citation

Yazzie, Robert. "Traditional Principles of Leadership." Emerging Leaders seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. November 6, 2013. Presentation.

Ian Record:

"I have the great pleasure of introducing Robert Yazzie, who is...who I've known for many years through his affiliation with the Native Nations Institute. He's been one of our longest serving members of our International Advisory Council. He's a real major figure in the area of tribal justice systems, and in fact I think Rae Nell [Vaughn] and Eldena [Bear Don't Walk] may reference the Navajo Nation Justice System tomorrow because they're really viewed...that system is really viewed as a leader in the process that many Native nations are engaging in in terms of reclaiming the function of justice in their own communities and returning it to a position where it's culturally appropriate and culturally relevant and reflective of culture. And Robert was one of the main architects of that movement, to make that justice system work for the Navajo people in a Navajo way. And we have the great honor...it was interesting, we see Robert a couple times a year and after the last time we saw him he mentioned a desire to come and speak to leaders such as yourself about what he calls the ‘traditional principles of leadership' and basically how you work to instill your own core values in the actions and decisions that you make as leaders, again, whether you're an elected official or just a decision maker within your own community, within your own family, within your own nation. So with that I'll turn the floor over to Robert. He's going to present for about 20 minutes or so and then we want to leave a little time at the end of his session for some questions."

Robert Yazzie:

"[Navajo language]. Anybody here? I have a humor to share with you just as an opener. When we say '[Navajo language],' we always say, ‘Goodness be unto you.' And so I had a solicitor when I was the sitting chief justice, he used to -- he's a white guy, used to see his Navajo wife every weekend. They would go to drive three hours to Albuquerque and when they meet they'll say [Navajo language], hugs and kisses and everything. So around 8:00, she would tell him, ‘Hit the hay.' And then over the weekend when she gets mad at him, she'll say, ‘What the hay?' I know that would get you going. Thank you for the cake. Good for my sugar level.

I would like to talk about the principles of Diné leadership and I want to talk about the definition of how Diné leadership can be understood in terms of its definition, in terms of its qualities, and also the challenges and experience of Diné leadership yesterday and today. So for purposes of achieving a better government, the question is, ‘Can the modern day leadership incorporate the traditional principles of governance from the past?' I think that's a very important question on our table.

So what is leadership? Studies of political systems show a scale of differing patterns, from absolute authoritarian leadership to leadership that's only persuasive. Some leaders exercise command with force and others only persuade. Most form of western leadership are based on the notion of power, to back up a command. In other words, leadership in that respect usually means power, control, authority and coercion. Diné, traditional Diné leadership is not about power, it's not about control or coercion, but a recognition that words are powerful through influence and persuasion. Persuasive leadership is based on compliance with the command or advice of a leader such as a wise uncle or other relative out of respect.

The Navajo word for leadership is '[Navajo language].' I think the concepts really teach us a lot, so I'm going to be talking about concept as a way to understand something about leadership, traditional leadership. So the Navajo word for leadership is '[Navajo language],' which in essence means 'a planner' and it comes from a word base means ‘speaking' [Navajo language]. The word for ‘planning' is '[Navajo language],' refers to talking things out to make a plan. The Navajo word for ‘leader,' '[Navajo language]' arises from power as a speaker and the word for ‘planning,' '[Navajo language]' is about problem solving and discussing plans. An elder would say '[Navajo language],' that it is about learning how to think, '[Navajo language],' learning how to use your thinking when the [Navajo language]. The [Navajo language], the leader uses those elements of thinking and planning as tools for leadership.

We generally understand that traditional leadership is based on possessing wisdom and the ability to speak, create plans for successful outcomes and results, create respect that compels people to follow. It's something like his or her word is law. So given that brief definition, we can ask the question, ‘Well, what are the qualities, what are the characteristics or traits of leadership and how does one get the qualities of leadership and earn respect?' So when we look at the thinking of the leader or for anybody for that matter, we look at two things that are opposites. The simplest way of saying it is you have something good, you have something bad. That's the centerpiece to your thought...to your thinking. So in that respect, our old system of government last seen in operation 1859. '[Navajo language]' means ‘the peaceful chief.' '[Navajo language]' is more of the opposite of a good peaceful chief. '[Navajo language]' means ‘firm.' It could mean something very rough as well. So looking at those concepts helps us to understand the Navajo leadership definitions and qualities according to the early style of leadership we call '[Navajo language].' So if you can imagine a circle, imagine that you have 12 leaders sitting toward each other, one representing the peace, one representing the war. So as I said, that was last observed in 1859.

So the two kinds of leaders traditionally, '[Navajo language]' or 'war leaders,' and the '[Navajo language]' or 'peace leaders,' the word '[Navajo language]' relates to decisions that are prompt, powerful and aggressive. That's the person's characteristics. The speaking done is for...the speaking to that...for that quality is for war. So the ability to immediately evaluate a situation and to speak to a plan to...and speak to a plan of immediate and aggressive action is necessary. Individuals get a reputation of being successful warriors. The word '[Navajo language]' comes from the word '[Navajo language]' basically means 'understanding of something good.' Understand [Navajo language] as a state of perfection. One definition is that [Navajo language] is that state of being where everyone and everything are in proper place relating and functioning well with everything to achieve a state of harmony or perfection. That requires a kind of speaking to achieve a perfect state that is wise and successful.

So Justice Austin who I used to sit with, Raymond D. Austin, who was Associate Justice when I was Chief Justice and after he retired he went to...went back to school. He was a law school graduate and he was a member of the Arizona Bar. He went back to the University of Arizona to earn a...to do his dissertation in Navajo common law. So he has come up with a book called The Navajo Nation Courts: The Common Law and in his book he talks a lot about the duty of a [Navajo language], the duty of a leader, which is to maintain [Navajo language] as a perfect state of condition and he said that could be the theory, but in terms of practice, the leader would identify a problem, a [Navajo language], and that leader has the obligation to engage himself or herself in what we call '[Navajo language].' In English is to say, ‘Think for the people to find the problem.' Identify the causes of the disruption of the state of [Navajo language] and once you have done that, then the challenge in one is to restore [Navajo language].

Individuals who want to be leaders do not appoint themselves. The status is earned. The western notion of advancing one's own name for political office by election makes no sense. Election in a traditional sense is spontaneous and based on necessities. For example, there may be plans for spring planting over a winter fire. So there would be talk of when to plant, who could read the stars to know when that is done and other matters that call for leadership guidance. So people who talk about what would be the best...who would be the best person to guide the planting season; that is a way leaders were chosen.

I served as the Navajo Nation court judge and the chief justice for the Navajo Nation Supreme Court for 19 years. As Navajo judges, we are considered as successors of the traditional [Navajo language], peace chief, because we are chosen for our individual qualities. Traits that make a difference in being a good leader include adherence to the duty of promoting harmony and order and treating people with fairness and humility. [Navajo language] of the past and today are looked upon as role models and the respect for our decision depends upon our personal integrity. Humility is a personal value, which prompts people to respect us judges for our decision not for our position.

One of the traditional terms for leader is that person is slightly higher than others and it reflects the view that leadership and the acceptance of its authority comes from those who conduct themselves well. It comes from individuals who speak well, plan well, show success in community planning or those who can talk the goods in for the people. Humility is not simply self-effacing behavior, but behavior that is consistent with competent leadership that is tempered with humility. Leadership is not for the self, but for the people. The people [are] the source of that power.

What is the traditional Navajo process for planning and decision making for leaders? The way of achieving [Navajo language], the good things, is by talking things out. As I said, the Navajo word '[Navajo language]' means 'to talk,' is related to leadership because of the common expression, as I said, words are powerful. Words of great leaders are powerful because they speak solution into reality. Navajos believe thoughts become action in words and that words create action or reality when they are spoken. Thinking becomes speech become action. That is the thought system where thinking and intuition drive words and speaking. Speaking in groups is planning and action is the result of thinking and planning. The Navajo word for leader '[Navajo language],' which arises from power as a speaker and the word for planning '[Navajo language]' is about problem solving and discussing plans. And there's a word, I'm sure that you have your own word for this concept, called '[Navajo language].' It's a very important concept in the past traditional practice of leadership. '[Navajo language],' which is 'talk things out.' It involves having free discussion among the leader with his people, with the community to clarify relationships, to identify problems and disputes and provides for a method of planning and making decisions. [Navajo language], talking things out process requires that reciprocity, doing things for each other in return, is about his or her obligation to what we call '[Navajo language]' and [Navajo language] is a concept that really can't be translated into English and I believe you have the same...the same experience is true with your language. That one word cannot be said, while '[Navajo  language]' means respect. '[Navajo language]' can mean many, many different things, even a book won't satisfy a good explanation of what that word means, but at best '[Navajo language]' is something like treating people with respect, compassion, reverence. So [Navajo language] or talking things out requires that reciprocity be practiced to ensure there's equal and equitable treatment for the people.

And there's another word that is very important as well, '[Navajo language].'Can you all say that? [Navajo language]. Not today? [Navajo language] is one of the practices for [Navajo language] and as I said, it's understood as knowing how to treat people with dignity and respect. The [Navajo language] as a [Navajo language] is always expected to act as though you have relatives. If you walk around, talk around, walk around and talk as if you have no relatives and the people would always say, ‘That person is forgetting about his or her obligation through [Navajo language].' A [Navajo language], a leader is always expected to honor his obligation through the concept of [Navajo language]. Talking things out with the people helps a leader to learn about ideas, expectation and recommendation of the community. An important aspect of making effective decisions by a leader is being well informed of the issues and concerns of the people. To be informed is to know what the people want. I think that is probably your experience as well when you observe Navajo Nation tribal council in session. Not everybody is there to know...to fully know what the people want, because the more you observe sometimes the more you find out the leader really needs to understand what the people are thinking and what is it that they're concerned about.

The other part, the other issue that was discussed is transparency and it's something that is really difficult to translate from English to Navajo, but at best you can say in Navajo, we say '[Navajo language],' means you can't hide your plans. '[Navajo language],' it means to make clear your plans. [Navajo language] requires transparency, a free flow of information, a duty to communicate, to make known the issues at hand. Planning for action can be transparent except for war way planning so that everyone who is affected can see what is going on and have an opportunity to have a say. Navajo tradition requires energy and good will when putting plans into action so that good intentions reflect positive energy [and] will produce a good result.

What are the challenges and experience of leadership in Navajo country? In 1989, we had a major crisis. The Navajo Nation government was, were nearly as a whole was nearly put on its knees. The Navajo Nation Chairman Peter MacDonald was accused [of] bribery and kickbacks and the Navajo Nation Council proceeded to put him on administrative leave for accusation and for other serious criminal allegations. He refused. He told the Navajo Nation Council, ‘You have no legal basis.' And he was right, but the matter was put before the Navajo Nation Council on a certified question and the Navajo Nation Supreme Court came back with a response and said that...he says, ‘under traditional method of selection of leaders, people choose their leaders [Navajo language] based on trust and confidence. If a leader breeches the trust by wrongful acts, the people would simply walk away.' This practice was what justified the council action to remove Chairman Peter MacDonald from office.

I think one of the questions that really bothers a lot of us is that when it comes to decision-making, how effective are the leaders in making a good decision? I think here's where we can involve the question, ‘Does traditional Diné leadership make a difference in the modern day?' And we talk about the problems we have on the...in Indian Country, that at times the atmosphere towards leadership can be very negative. And you look at the situation in Indian Country, people are living the hard life, frustrated, overwhelmed with trying to make things...trying to make ends meet and because there are no jobs, no money, no educational opportunities people are suffering from domestic violence. People cannot help but feel that leadership is inefficient, ineffective. So here's where we are asked the question, ‘If we were to do something a little different,' for example, look at the question, ‘Do the principles of Navajo traditional governance have a role in this scenario?' That is to say, does the traditional Diné leadership make a difference in the modern day? And sometimes when we need to respond to that kind of question we always talk about journey narratives, we always talk about Twin Heroes.

Twin Heroes were out to help save the people when the bad energy, the bad monsters began to take its toll on human lives. People really struggle, people were suffering, people were living with chaos and disharmony and so when we look at these narratives we can say that there was...that the Twin Heroes came and helped the people in many, many ways. They destroyed almost everything, all of what we called '[Navajo language],' the bad energy. But there were some who say, ‘Please save us. We can help the human race to live a quality of life.' But there are certain type of [Navajo language] that have no mercy on humans and so when the Twin Heroes, before killing the monster, the father, the Sun said, gave instruction and said to carefully study and observe the movement and behavior of the monster. Before you make the attack, thinking before you make the attack is a value that advises leaders today to carefully observe the problem before taking any sort of action. So it's telling us that where there's chaos is to really study the problem, understand the problem before you proceed to say, ‘What are the alternatives?'

So one of the things that we're trying to do within the Navajo Nation is to make some changes. I have a proposed legislation here before the Navajo Nation Council and it's about creating a uranium commission that would help to clean up the abandoned mines. We have so many... so much abandoned mines that it's causing a big risk. It's already causing a lot of health problems and people have died from it. And I was told, ‘Well, could you help us? Could you design a legislation that touches upon the fundamental law of the Diné?' And so it took me a long time to think that when we look at our tribal code, we see a lot of incorporation of state law, federal law and I think the emphasis should be, now that most of our kids are going to law school and are coming back to establish their practice, I think the emphasis is to take seriously and to say, ‘How do we develop our Indian thinking and use it as a tool to craft legislation?' So when I thought about this in terms of creating a commission and I thought about the leadership of that commission, that this leadership should be guided by the fundamental law of the Diné, and also the leadership also should be informed about the laws that we have, the laws from the time of creation. The laws from the time of creation is telling us about what is the natural law, '[Navajo Language]'? Natural law means laws that come from the earth and the universe and that itself, the natural law was like planting the seeds, planting the seeds to develop other forms of law.

For example, we have what we call traditional law, custom law and common law. So the medicine people sat down and said, ‘Well, the natural law should be something that is coming from the water, from the air, from the fire, from things that grow on earth. They have their own independent existence. We are...we come from those elements and then as such we should observe a relationship that is one of respect.' Everything that we learn from those elements we say that '[Navajo language],' means everything is related, we're all related in one way or another and as such we are the elements of nature and the elements of nature is us. So in that respect, we can't dominate those elements and the only thing we can do is to clearly understand that from the time those things were put in place and the time we were created is what the holy people did and said to us, ‘This is the law and I put it in your hand. [Navajo language] in the holy way I put it in your hands. Now you shall become the stewards to take care of these elements. These elements, you take care of them, they'll take care of you.'

So those were the thoughts in terms of creating a commission. I know that a lot of us are concerned that what is it that we should recover from our past? There are sources already that we can learn about, that we can apply, that we can work with and if we proceed to do that, it's amazing how much that can be done, it's amazing how much of an influence it has on the kind of thinking we have. It'll change the paradigm. Like you said, this is the way Navajos handle it, this is the way the Mohawks handle it, this is the way the Blackfeet handle it, is what we will be saying if we were to proceed down this path. And I think a lot of us learn, know our language. And this legislation is talking about a story as an approach to develop a law, but it's not a matter of talking about the story. The story should be to say, ‘How do I use this material to develop something for this modern day? How can I develop this as law so my kids in the future can say, this is the law of our grandfather and our grandmother.' A lot of us are up in age, we are the grandmothers, we are the grandfathers, and a lot of grandmothers and grandfathers say, ‘I have no idea, I have no clue about the creation story.' When the grandkids are asking questions, the response is, ‘I don't know.' But it's not simply that we can't just say, ‘I don't know,' because I know that a lot of us Indian people know a lot about our past and if we take the time to share that and say, ‘How can we revive those? How can we learn to articulate those teachings so that they sound like law in the statutes, in case laws?' Thank you."

 

Honoring Nations: Robert Yazzie: The Navajo Nation Judicial Branch

Producer
Harvard Project on American Indian Economic Development
Year

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.

People
Native Nations
Resource Type
Citation

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."

From the Rebuilding Native Nations Course Series: "What Strong, Independent and Legitimate Justice Systems Require"

Producer
Native Nations Institute
Year

Native leaders and scholars discuss what Native nations need to do to create strong, independent and culturally legimate justice systems.

Native Nations
Resource Type
Citation

Fineday, Anita. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. August 5, 2010. Interview.

Jorgensen, Miriam. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Spearfish, South Dakota. Apil 19, 2011. Interview.

LaPlante, Jr., Leroy. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. August 12, 2010. Interview.

Laverdure, Donald "Del". Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. August 12, 2010. Interview.

McCoy, John. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Cambridge, Massachusetts. September 18, 2009. Interview.

Tatum, Melissa L. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. January 25, 2012. Interview.

Vaughn, Rae Nell. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. September 15, 2009. Interview.

Yazzie, Robert. "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.

Leroy LaPlante, Jr.:

“I think a strong, independent tribal justice system, first of all, is tribal. I think that it should be tribal in the sense that it knows how to deal with tribal issues. And yet it’s diverse enough to handle and adjudicate all matters that come before it. I think you should have competent judges. I think that you should have strong advocacy for clients. And it must have a way of measuring its performance. But yeah, a strong tribal system should be tribal in nature. In other words, what I mean by that is, it shouldn’t just be a boilerplate replication of what a state court looks like and promulgate those laws. But those laws should be traditional in nature. It should reflect our customs. It should reflect our customary law, our traditional laws, and we should know how to deal with those and inject those viewpoints into our decisions.”

Melissa L. Tatum:

“I don’t think I could draw you a picture of a strong and independent court system, because they can take so many different shapes and many different forms. I can tell you what the support beams are, and then the way the drywall and the paint and the decorating is going to be different. And the support beams may be put together in a different way to form shapes for different tribes. But you’ve got to have an independent judiciary, you’ve got to have the funding to be able to resolve the disputes, you’ve got to have someone to make a connection between the past and the present, and you’ve got to have the capacity to solve the disputes the community brings before you in a way that everybody accepts as legitimate. And that’s what a strong and independent court system looks like. Now that may be a peacemaker system, that may be an Anglo-style adversarial court, that may be a hybrid of the two. That may be, you know, the court may be in a single-wide trailer; the court may be in the most absolutely beautiful, technologically up to date building. But it can take a wide variety of forms. Its function is what’s critical.”

Miriam Jorgensen:

“I think that we oftentimes trip immediately to saying, ‘Oh, that justice system has to be a sort of Western-style court system.’ And in fact, I almost always find myself using the word court. But, it doesn’t have to be a court with the judges and robes and the bench and all that kind of stuff. It has to be a dispute-resolution mechanism that’s effective and efficient and transparent about the way decisions are made, and that can hold people to those decisions. But it can be as indigenous as you like. It just has to be one that works to meet those standards.”

Donald “Del” Laverdure:

“I think it needs independent decision-making authority without political interference, first and foremost. Secondly, I think it needs to be fully funded. My experience among tribal justice systems -- and I have served on a handful and also helped create a number -- is that they need the funding to have the staff, the clerks, the recorders, the people keeping track of the files. It’s absolutely critical for all of the day-to-day functioning. The third thing, I think, for them is to apply that nation’s law according to how they view it. And I think the Navajo Nation really has emerged as a leader in fundamental or Diné  law in their statutes, interpretation of those, and it’s widely accepted by the community. I think we’re making steps there. It’s always two steps forward, one step back. And I think if we have all of those markers that it’ll be the institution that we need to be independent and stable.”

John McCoy:

“They have to be independent. They have to be independent and not worry about political consequences. So consequently at Tulalip, the court system comes in, here’s the budget. So normally, without hesitation, they say, ‘Okay, here’s your money.’ They can’t tell them how to spend it; they just give them the money. And then the court administration then takes care of the budget. So you have to give them that autonomy.”

Anita Fineday:

“Well, you need to have a few things. Number one, you need to have independence from the tribal council, from all elected officials, whoever they may be. And this is a struggle in Indian Country, as we all know. It routinely happens that tribal judges are replaced if they issue a decision that is really unpopular. And so the tribal court needs to be independent, and it needs to have adequate funding. That’s the other thing that happens is I’ve seen tribal councils say, ‘Well, we’re not going to get rid of the judge, but we’re going to cut off all funding to the tribal court.’ So no one is getting paid any longer. So you need to have an independent stream of funding. You need to be independent of the elected officials. And you need to not fear that if you issue a decision that’s unpopular, that you’re going to lose your job.”

Rae Nell Vaughn:

“It’s just so important that when we have issues that come up through tribal court systems, that as a judiciary you’re giving well thought-out opinions, and it’s ironclad so that you can’t -- it won’t be unraveled. And there you go, you’ve lost more jurisdiction.”

Robert Yazzie:

“When Navajos go to court, they expect certain things to happen. One is to say [Navajo word], which means ‘my mind will become at ease’ when this problem that I have is addressed. And people look for a satisfied result. And so when people feel confident with the court system, especially establishing a relationship with the judge, knowing that the judge’s role will be carried out to bring peace to the problems at hand.

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

Producer
Native Nations Institute
Year

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
Citation

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."

[music]

 

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;
background:white;mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:
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."

 

Navajo Nation Constitutional Feasibility and Government Reform Project

Author
Year

This paper will review three important elements related to the constitutional feasibility and government reform of the Navajo Nation. The first section will outline the foundational principles related to constitutionalism and ask whether constitionalism and the nation-state are appropriate functions for the Navajo Nation to pursue, given its historical norms, values, principles, and given the passage of the Foundational Laws.

The second section will specifically look at historic notions of governance and power and how that relates to the doctrine of the separation of powers in the Navajo Nation. The section describes how the separation of powers currently enshrined in the Navajo Nation Code is different from the actual practice of the separation of political powers. It suggests that the compartmentalization of powers into agencies will actually hinder the interests of the people, and will be less culturally valid.

The third section is a treatise on the practice of judicial review in the Navajo Nation and suggests that it paramount to government reform. The de facto separation of powers within judicial review is highly respected.

The last section details recommendations for government reform.

Native Nations
Resource Type
Citation

Yazzie, Robert, Moroni Benally, Andrew Curley, Nikke Alex, James Singer, & Amber Crotty. "Navajo Nation Constitutional Feasibility and Government Reform Project." Diné Policy Institute. Diné College. Tsaile, Arizona. September 2, 2008. Paper. (http://www.navajo-nsn.gov/News%20Releases/Joshua%20Lavar%20Butler/Oct08/..., accessed March 4, 2014)