News Flash: As this story was completed, we learned that the Navajo Nation Supreme Court had decided in Navajo Nation v. Russell Means that the Nation’s Chinle District Court did have jurisdiction over Russell Means. "We trust and hope that our decision will be honored as being in the interests of the Navajo People," said Chief Justice Robert Yazzie.
Forty years ago, the Navajo Nation Council, the tribe’s legislative body, created the current Navajo court system, modeled on the American system, Chief Justice Yazzie told the audience, "partly so the outside system would stay away." Throughout his remarks Yazzie emphasized the importance of Navajo Common Law, explaining that "living legends" such as the story of Monster Slayer and Born for Water form its foundation. In the mid-1980s, the Navajo Nation Supreme Court renewed its commitment to making Navajo Common Law "the backbone" of Navajo law, said Yazzie, adding that he and Justice Austin are working on a Navajo Common Law curriculum, based on an oral history project they are conducting with Navajo medicine people.
Remarking on some of the most far-reaching efforts by white people including a noted nineteenth-century Harvard Law professor - to exert legal control over Indians, Yazzie said the Courts of Indian Offenses were established by the U.S. government in 1883 as a means "to civilize Indians and abolish Indian Common Law." Shortly thereafter, James Bradley Thayer, an HLS constitutional law professor and president of the influential New York organization Friends of the Indians, declared that the Courts of Indian Offenses were inadequate to "civilize" Indians and supported U.S. plans to further increase legal control over Indians.
Despite two centuries of U.S. efforts to undermine tribal sovereignty - including the U.S. Supreme Court’s decisions in Duro and other cases concerning Indian self-governance - today the Navajo courts are firmly established, Yazzie said. Navajo Common Law and statutory laws are the laws "of preference." When no Navajo or federal law covers a case, state law may be invoked. The courts have both adjudicative and legislative jurisdiction over Indians and non-Indians in civil cases. They have criminal jurisdiction over Indians, but not non-Indians - except those who assume tribal relations with Navajos - in criminal cases and the authority to impose jail sentences of up to six months. Major crimes are subject to U.S. federal jurisdiction, unless both victim and perpetrator are non-Indian, in which situation the state has jurisdiction.
Judges, of whom there are 14, half of them men and half women, are appointed by the Navajo Nation Council and serve two years of probation before they are eligible for a lifetime appointment. They must have in-depth knowledge of federal and state laws as well as Navajo law and the laws of other tribes, Yazzie explained, and must be fluent in the Navajo language so that older Navajos, many of whom do not speak English, can understand court proceedings.
Peacemaking, at the heart of Navajo Common Law and "the first process Navajo people used to settle disputes," according to Yazzie, is an integral part of the court system. Family court judges may refer cases to peacemakers at their discretion. "Everyone affected by the conflict comes together with the peacemaker," to work out a mutually satisfactory solution, and "to restore stability in the lives of both the defendant and the victim," Yazzie told the gathering, adding that a study shows the Navajo people prefer peacemaking to family courts.
Efforts to expand peacemaking - today there are 225 peacemakers - are a hallmark of Yazzie’s tenure as chief justice and part of the Navajo Nation’s commitment "to return to local communities greater control so they can solve their own problems." About 15 cases were referred to peacemaking in 1992, Yazzie’s first year as chief justice. Since then peacemakers have helped settle 1,300 cases. Yazzie said that he has had the opportunity to share his experience of peacemaking around the world, in Bolivia, Canada, South Africa, and elsewhere.
Toward the Future of Navajo Justice
In an interview with the Bulletin after the Harvard visit, Chief Justice Yazzie discussed challenges facing the Navajo justice system and his priorities as chief justice.
Citing a 1999 Department of Justice report, Yazzie noted that crime rates in Indian country are higher than in the rest of the United States, and said poverty and inadequate crime prevention resources are among the main causes. The 65,000-plus cases that came before Navajo Nation courts last year included more than 21,000 criminal cases. Driving while intoxicated ranks high, as do crimes against persons, including family violence. Noting that half of the population of over 250,000 Navajos is under the age of 20, Yazzie said the Navajo Nation faces a serious gang problem: "If we don’t do something, children will be caught up in the cycle of violence. The Navajo Nation needs an integrated approach to crime prevention and criminal enforcement, including social programs, especially for youth, as well as more police and resources for our court system." Yazzie was recently in Washington, D.C., with leaders of the Navajo Nation Council to make the case for more resources to U.S. legislators.
Criminal enforcement is one of the most difficult problems tribal governments face, Yazzie emphasized. Federal and state government officials notified about crimes under their jurisdiction are often unresponsive, especially when the crime occurs in a remote area of Indian country, and are lackadaisical about prosecution. In the past four years, some 10,000 crimes were committed by non-Navajos on Navajo reservations. "Many crime victims live miles from federal courts. The state doesn’t want to deal with them, and neither do the U.S. attorneys."
Yazzie noted his commitment to increasing community control in the administration of justice. In 1994 he initiated a sentencing commission authorizing judges to sentence offenders to community service as an alternative to incarceration. The commission is part of his larger vision for the Navajo Nation courts, he said. "The U.S. government has always told us that we should resolve our disputes by American methods. The American way is to establish authority, to wear black robes and have extensive rules of law and systems of punishment. That is a very expensive system, and it takes power away from the communities. We are trying to help local communities resolve their own problems. Alternative sentencing is one way, and peacemaking is another. The age-old process of peacemaking, he added, "is not ‘ADR,’ it’s ‘ODR,’ original dispute resolution."