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