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«INTRODUCTION Navajo justice is unique, because it is the product of the experience of the Navajo People. Prior to contact with European cultures, ...»

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"LIFE COMES FROM IT": NAVAJO JUSTICE CONCEPTS

THE HONORABLE ROBERT YAZZIE*

INTRODUCTION

Navajo justice is unique, because it is the product of the experience

of the Navajo People. Prior to contact with European cultures, Navajos

developed their ways of approaching life through many centuries of dealing

with obstacles to their survival. Likewise, Navajo concepts of justice are a product of the experience we have gained from dealing with problems.

To fully understand these concepts, the essential character of AngloEuropean law must be compared to that of Navajo law.

Law, in Anglo definitions and practice, is written rules which are enforced by authority figures. It is man-made. Its essence is power and force. The legislatures, courts, or administrative agencies who make the rules are made up of strangers to the actual problems or conflicts which prompted their development. When the rules are applied to people in conflict,' other strangers stand in judgment and police and prisons serve to enforce those judgments. 2 America is a secular society, where law is characterized as rules laid down by human elites for the good of society.

is beehaz'aanii. It means something The Navajo word for "law" fundamental, and something that is absolute and exists from the beginning of time. 3 Navajos believe that the Holy People 4 "put it there for us from the time of beginning" 5 for better thinking, planning, and guidance.

It 'is the source of a healthy, meaningful life, and thus "life comes from ' Navajos say that "life comes from beehaz'aanii," because it is the it.

essence of life. The precepts of beehaz'aanii are stated in prayers and ceremonies which tell us of hozho-'"the perfect state." Through these prayers and ceremonies we are taught what ought to be and what ought not to be.

" The Honorable Robert Yazzie is the Chief Justice of the Navajo Nation. He is a graduate of Oberlin College, B.A. 1973, and the University of New Mexico School of Law, J.D. 1982.

1. The conflict is most often with the "state" in criminal law, thereby losing sight of the harm done to a victim.

2. This is a criminality and police model, which has created many problems for tribal courts today. Russell Lawrence Barsh and J. Youngblood Henderson, Tribal Courts, The Model Code, and the Police Idea in American Indian Policy, in AmmaucAN IDI.ANs AND Tim LAW 25 (Lawrence Rosen ed., 1976).

3. Bennett v. Navajo Bd. of Election Supervisors, 18 Indian L. Rep. (Am. Indian Law. Training Program) 6009, 6011 (Navajo 1990).

4. The term Holy People refers to divine personages or spirit forces which were instrumental in the creation of the world. Following creation and the exodus of the Navajo People to their present place in this world, the Holy People went into the rocks and earth, where they still hel

–  –  –

Our religious leaders and elders say that man-made law is not true "law." Law comes from the Holy People who gave the Navajo people the ceremonies, songs, prayers, and teachings to know it. If we lose our prayers and ceremonies, we will lose the foundations of life. Our religious leaders also say that if we lose those teachings, we will have broken the law.

These contrasts show that while Anglo law is concerned with social control by humans, Navajo law comes from creation. It concerns life itself, and the means to live successfully. The way to a meaningful life can be learned in teachings which are fundamental and absolute.

Navajo justice is also pragmatic, and to explain how that is so, I will describe the problems Navajos address, contrast Navajo thinking with the major concepts of Anglo-European law, outline Navajo dispute resolution processes, and discuss the practical, problem solving emphasis of Navajo law.

THE SOCIAL PROBLEMS NAVAJOS FACE

The core of Navajo justice is problem-solving. Navajo legal thinking requires a careful examination of each aspect of a given problem to reach conclusions about how best to address it. 7 Navajos have faced different problems as they learned the ways of survival in a sometimes hostile environment. In the times of legend, Navajos slew monsters.

Today, Navajos face new monsters, including:

Domestic violence, involving abuse to spouses, elders, and children.' * Gang violence, where Navajo youths refuse to listen and do what they please.9 * Alcohol-related crime' ° such as driving while intoxicated, with resulting loss of productive lives;" and disorderly conduct and fighting among neighbors and families in communities. 2

7. I recently compared the process of justice planning to the traditional Navajo method of using a crystal ball to look into the future. Robert Yazzie, Tribal, State, and Federal Relationships in Our Future Society, address at Building on Common Ground: A Leadership Conference to Develop a National Agenda to Reduce Jurisdictional Disputes Between Tribal, State, and Federal Courts (Sept. 18, 1993). 1 explained that predicting the future requires a careful examination of each aspect or facet of the present as the means to see into the future.

8. While spouse abuse was present in pre-contact times, Navajos developed successful approaches to addressing it; modern social violence is an alien import. James W. Zion & Else B. Zion, Hozho' Sokee'-Stay Together Nicely: Domestic Violence Under Navajo Common Law, 25 ARIZ. ST. L.





J. 407, 412, 416 (1993,.

9. We, as Navajo judges, are shocked to learn of gang fights with weapons in our communities.

10. We estimate that of our current criminal caseload (cases brought forward plus new filings), approximately 90,000 matters or 700%6 of the offenses are related to or the product of alcohol use.

This leads us to wonder whether criminal law is the best tool to address crime and alcohol. See Barsh & Henderson, supra note 2, at 53.

11. This is a problem all jurisdictions in the Southwest share. Alcohol-related mortality, e.g., deaths which are the product of alcohol consumption is high in New Mexico. It has the highest motor vehicle accident fatality rate in the United States. Liza D. Chavez et al., Alcohol-Related Mortality, in RACIAL AND ETHNIC PATTERNS OF MORTALITY IN NEW MEXICO 108, 113 (Thomas M.

Becker et al. eds., 1993). Blood alcohol levels were present in 51% of auto crash deaths, 49% of homicide victims, and 42% of suicides. Id.

12. This is our greatest category of criminal offenses. Navajo Nation trial judges agree that disorderly conduct most often involves drinking and fighting in family and community settings.

NAVAJO JUSTICE CONCEPTS

Spring 19941 * Child abuse and neglect. 3 * The breakup of families in divorce and separation, with lasting effects upon children. 4 These problems are today's monsters; they are problems which get in the way of a successful life. The element which is common to all of the stated problems, including widespread alcohol abuse, is a loss of hope.

There is a disease of the spirit which infects too many Navajos and leads to rising court caseloads. 1 What do modern systems of justice offer to deal with these problems? Have the courts been effective in addressing them? Perhaps the very nature of these problems, grounded in a loss of self-respect and hope, gives us clues as to how they can effectively be addressed.

JUSTICE

THE ADVERSARIAL SYSTEM: "VERTICAL"

The first modern courts were introduced to the Navajo Nation in

1892. 16 Today's Navajo Nation courts were created in 195917 and reconstituted in 1985.18 The Courts of the Navajo Nation use the state model of adjudication, i.e. the adversarial system. There are obvious conflicts between Anglo-European justice methods and those of Navajo tradition.

In trying to resolve these conflicts, Navajo Nation justice planners sometimes use models to help analyze the differences between the AngloEuropean and Navajo legal systems. One useful model describes the legal system as "vertical" and the Navajo legal system Anglo-European ' 19 as "horizontal.' A "vertical" system of justice is one which relies upon hierarchies and power. 20 That is, judges sit above the parties, lawyers, jurors and other participants in court proceedings. The Anglo-European justice system uses rank, and the coercive power which goes with rank, to address conflicts.

Power is the active element in the process. Judges have the power to directly affect the lives of the disputants for better or worse. Parties to a dispute have limited power and control over the process. A decision is dictated from on high by the judge, and that decision is an order or

13. Given Navajo attitudes toward children as special treasures, this too is an imported social disease. See Lizabeth Hauswald, Child Abuse and Child Neglect: Navajo Families in Crisis, 1 DINE BE'IINA': A' JOURNAL OF NAVAJO LIFE 37 (1988).

14. As it is with general patterns of criminality in the United States, Navajo Nation judges can directly relate youth and adult crime to family disruption.

15. Over 85,000 pending criminal and civil cases in FY 1992, and 93,000 in FY 1993.

16. SIXTY-FIRST ANNUAL REPORT OF THE COMMISSIONER OF INDIAN AFFAIRS TO THE SECRETARY

OF THE INTERIOR 209 (1892); DAVID ABERLE, THE PEYOTE RELIGION AMONG THE NAVAHO 34 (1982).

17. 1958 Navajo Nation Council Res. Nos. CO-69-58 and CJA-5-59 (codified at NAVAJO TRIB.

CODE tit. 7, § 101 (1978)). The courts of the Navajo Nation, as the judicial branch of the Navajo Nation, came into being on April 1, 1959.

18. 1985 Navajo Nation Council Resolution No. CD-94-85 (codified at NAVAJO TRIB. CODE tit.

7, § 101 (1978)).

LAW WITHOUT SANCTIONS: ORDER IN PRIMITIVE SOCIETIES AND THE WORLD

19. MICHAEL BARKUN, COMMUNITY 16-17 (1968); see also Richard A. Falk, International Jurisdiction: Horizontal and Vertical Conceptions of Legal Order, 32 TEMPLE L. Q. 295 (1959).

20. BARKUN, supra note 19, at 16.

NEW MEXICO LAW REVIEW [Vol. 24 judgment which parties must obey or else face a penalty. The goal of the vertical system or adversarial law is to punish wrongdoers and teach them a lesson. For example, defendants in criminal cases are punished by jail and fines. 21 In civil cases, one party wins and the other party is punished with a loss. Adversarial law offers only a win-lose solution;

it is a zero-sum game. The Navajo justice system, on the other hand, prefers a win-win solution.

A fundamental aspect of the vertical justice system is the adjudicatory process. Adjudication makes one party the "bad guy" and the other "the good guy;" one of them is "wrong" and the other is "right." The vertical justice system is so concerned with winning and losing that when parties come to the end of a case, little or nothing is done to solve the underlying problems which caused the dispute in the first place.

For centuries, the focus of English and American criminal law has been punishment by the "state." The needs and feelings of the victims are ignored, and as a result no real justice is done. There are many victims of any crime. They include the direct recipients of the harm and those who depend on them, family members, relatives and the community.

These are people who are affected by both the dispute and the legal decision. Often, the perpetrator is a victim as well, caught in a climate of lost hope, alcohol dependency and other means of escape.

The victims, or subjects of the adjudication, have little or no opportunity to participate in the outcome of a case. Their needs and feelings are generally not considered, and thus not addressed. 2 They leave the courtroom feeling ignored and empty-handed. The adversarial system is "all or nothing," where strangers with power decide the future of people who have become objects rather than participants.



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