KNAU and Arizona News
Thu October 13, 2011
Navajo Tribal Council weighs rule changes for high court
By Shelley Smithson
Window Rock, AZ – The Navajo Nation Council will take up legislation next week that could transform the tribal judiciary.
The proposal to require Navajo Supreme Court justices to hold law degrees raises questions about whether Navajos want a legal system based on their own culture or American traditions.
Council Delegate Russell Begaye of Shiprock, N.M., is sponsoring the bill that would require Navajo Supreme Court justices to hold law degrees and be certified by a state bar.
Begaye recently moved back to the reservation after three decades away. He has a master's degree in political science and worked for the United Nations helping refugees.
He says the tribal government needs more Navajos with professional degrees, especially in high-ranking positions.
"When you're trying to increase the qualifications of justices, the less qualified they are, the more they can be manipulated," Begaye says.
The Navajo Nation Supreme Court hears appeals from tribal district courts.
Cases can involve everything from custody disputes to wrongful death claims brought against companies doing business on the reservation.
The Supreme Court does not hear cases involving major crimes such as murder or rape, which fall under federal jurisdiction.
Supreme Court Chief Justice Herb Yazzie graduated with a law degree from Arizona State. Yet, he is against the proposal.
He says it is more important that judges be well versed in the Navajo language and culture, which is the basis of the tribal legal system.
"Through my experience, and other native lawyers will tell you, law schools teach only the American perspective of law," Yazzie says. "They do not teach that there are various other systems out there in the world. And it is strongly stressed in law school that this is the system."
Yazzie says the Navajo courts -- with the blessing of the Tribal Council -- have moved toward a more traditional Din approach. Navajos call themselves Din .
The Din legal system emphasizes accountability as well as restoring relationships between all sides in a dispute.
That approach carries over to justices' legal decisions. Yazzie says the goal is for justices to reach consensus. That is why there are very few dissenting opinions in Navajo case law, he says.
According to Yazzie, Navajo law is based on the unwritten values of Din society as well as the court's written decisions.
"The value system we are taught as Din people, that teaching comes principally through living the life with the elders, and oral teachings," Yazzie says.
As an example, Yazzie cites land dispute cases in which property rights usually are awarded to women.
"The Navajo family is based on the clan system. The clan system is based on the mother. They are the principal anchor to the family and to the use of land," he explains.
Council member Begaye says many delegates believe the Supreme Court has been capricious in their rulings - particularly those against the Tribal Council.
"There seems to be a power play between the judicial system and the legislative branch," Begaye says. "They all have their opinions that the justices are not ruling by the rule of law ,that they make their own laws, which you might label as fundamental law."
But he says the ongoing political struggle is not the reason he is sponsoring the bill.
He says a legal system with law-school trained judges and less reliance on fundamental Din law would attract more businesses to the reservation.
Matthew Fletcher, an Indian law professor at Michigan State, says the Navajo Supreme Court is actually known for its fairness to outside businesses.
"They write and justify every decision they make," says Fletcher, who is also director of MSU's Indigenious Law and Policy Center. "These are really well written opinions.
"You could teach a whole class just on Navajo Supreme Court decisions. They are the leaders when it comes to appellant decisions."
Fletcher says he sees both sides.
If Navajo justices were trained as lawyers, their decisions might be given more credibility. On the other hand, a requirement that all justices be law-school trained could erode the unique Navajo legal system.
"There are tribes here in Michigan that say one of the judges has to be a lawyer, one of the judges has to be an elder, and the other could be anything just as long as it's a tribal member," Fletcher says. "I like that kind of scenario."
The Tribal Council will take up Begaye's legislation when it meets next week in Window Rock.