NAVAJO COURTS AND NAVAJO COMMON LAW

Vol. 20 No. 8 (August, 2010) pp.310-314

NAVAJO COURTS AND NAVAJO COMMON LAW: A TRADITION OF TRIBAL SELF GOVERNANCE, by Raymond D. Austin. Minneapolis, University of Minnesota Press, 2009. 296pp. Cloth. $60.00. ISBN: 9780816665358. Paperback $19.95. ISBN: 9780816665358.

Reviewed by Michael Lerma, Department of Politics and International Affairs, Northern Arizona University. michael.lerma [at] nau.edu.

Former Justice of the Navajo Nation Supreme Court, Raymond D. Austin, has explored the contribution that the Navajo Courts have given to Navajo Nation citizens and to all Native Nations. "Navajo Courts and Navajo Common Law: A Tradition of Tribal Self-Governance" is ground a breaking in depth treatment of a subject deserving more attention. The book is offered within the context of a broader trend in Indian Country toward developing and maintaining capable Tribal Courts. The U.S. Supreme Court decision in WILLIAMS v. LEE (1959) set the stage for Navajo Nation and all Native Nations to decide for themselves how to construct their tribal courts. Self Determination legislation paves the way for Native Nation courts to be constructed on terms outlined by each Native Nation. Now many Native Nations are concluding that their courts need to adhere, in varying ways, to their particular philosophy independent of mainstream political philosophy.

Austin briefly addresses Navajo philosophy as a place to which the contemporary Navajo Judiciary may return in a post "Court of Indian Offenses" world. A brief history of the Navajo Nation Court system follows the various iterations that have been attempted on Navajo Nation. The earliest attempts to create a Navajo Court system were framed by Euro-American political philosophy and based on the assumption that within Navajo Nation, and all Native Nations, there existed an "Indian Problem" which must be solved via Euro-American civilization. For example, Austin traces the contemporary court system back to Hw4eldi (the long walk) in which Navajos were imprisoned at Bosque Redondo from 1864-1868. Here, twelve Navajos were assigned as principle leaders during the incarceration period based on the assumption by the U.S. military officials that twelve principle leaders were collectively incarcerated among the prisoners. The rationale was that if the twelve Navajo leaders were given a symbolic leadership role, the other incarcerated Navajos would be more easily managed. Incarcerated Navajos clung to their philosophy regarding not only their world view, but also their perspective on what Euro-political philosophy might call jurisprudence. Preservation at Hw4eldi was supplemented by Navajos not captured during the Army campaign to take Navajoland. The drastic changes occurring between 1868 and 1923 contributed heavily to the contemporary Navajo Court system. From an outside point of view, one might presume that the Navajo philosophy of governance in general was being replaced with a Euro-American version of governance. Austin demonstrates how Navajo justices may [*311] have reluctantly accepted the guise of a Euro-American court system but the justices themselves relied on Navajo philosophy.

Navajo Courts, like many other tribal institutions of governance, needed to ride out the schizophrenic Federal Policies towards Native Nations. This history is documented briefly and discusses how Navajo Nation successfully retained their ability to name their own justices during the Indian Reorganization Act era (1934). Navajo policy makers also successfully retained tribal jurisdiction during Termination era activity, including the attempt by states to take jurisdiction via Public Law 280. Yet, it was not until the Supreme Court decided WILLIAMS v. LEE (which held that claims against Indians by non-Indians must be heard in Tribal Courts and not State Courts) that the door finally opened for an overt and explicit discussion of a self-determined approach to Navajo jurisprudence could occur. By 1958, the Navajo Tribal Council established a judicial branch of government. Further reforms were implemented in 1985 intended to convey independence in the Navajo judiciary. Interestingly, it seems very strategic that Navajo policy makers may have intentionally created a court system that appeared "western" in nature and allowed Navajo philosophy to work in an epiphenomenal way. In other words, Navajo philosophy does not appear to have ever ceded its salience from the days of Hw4eldi to the contemporary court system. The most interesting aspect of the court system comes from Navajo philosophy.

The basis for Navajo Courts is, and has always been, a reliance on Navajo philosophy. Austin admits that it would be difficult to capture Navajo philosophy in English. These caveats aside, Austin's summary is masterful and illuminating. Other research indicates that a Navajo Nation wide push for relying on the Fundamental Laws of the Din4 began occurring during the early 1990's, (Bobroff 2004-2005). Austin expounds on the activity by stating that it was the Courts that forced the hand of the other branches of Navajo government: "the rest of the Navajo Nation government had no choice but to take up the challenge" to incorporate fundamental laws into contemporary use (p.37). The challenge of utilizing Navajo philosophy in contemporary Navajo government is complicated because (as Austin argues and as the history of Federal Indian Policy supports) the current Navajo Nation government was imposed on Navajo people. Austin states, "the Navajo people did not participate in the initial creation of their government (or they would have insisted on incorporating Navajo ways of doing things)" (p.38, parenthesis in original). When specifically tied to the courts, the early 1980s (post termination and self-determination era) allowed for a consensus among Navajo court justices to emerge embracing a reversion of Navajo courts back to Navajo philosophy in explicit terms. Austin provides a laundry list of complaints including

1. Pre-1980 model could not solve all problems in Navajo communities

2. Pre-1980 model was too expensive and time consuming

3. Pre-1980 model frustrated and confused litigants

4. Pre-1980 model was confrontational to the point that it was outside acceptable norms of Navajo practice (p.39) [*312]

The proposed solution involved relying on Fundamental laws of the Din4 or Din4 bibee haz'1annii.

Din4 bibee haz'1annii is something like "higher law" or "way at the top" and refers to what western philosophy may call natural law. Within bibee haz'1annii is concepts of h0zh=, k'4, and k'47. To be sure, these concepts are not the exhaustive enumeration of concepts of Navajo philosophy. Rather, they are the interelated concepts that Austin has identified as the most import guides used by contemporary Navajo Justices. K'4 is a positive relationship with all things while K'47 is a positive relationship with all relatives. When the correct balance is achieved, one is said to be okay. It is when an out of balance situation arises that Navajo Court justices may best be consulted as they may know the best way to restore h0zh= via bringing the individual, k'4, and k'47 back into balance relative to one another. Navajo Court justices are aware of haz'4, or, the acts which are permissible according to the above aspects of Navajo philosophy. Yet, the above tenets of Navajo philosophy are just the tip of the iceberg.

Austin states that there are four aspects of Creation Scripture and Journey Narrative, Traditional Law (Diyin Bits'33d66' Bee Haz'1annii), Customary Law (Diyin Dine'4 Bits' 33d66 Bee Haz'1anii), Natural Law (Nahasdz11n d00 Y1di[hi[ Bits'33d66 Bee Haz'1anii), and Common Law (Diyin Nohook11 Din4 Bibee Haz'1anii). And while these tenets of Navajo Philosophy should be the basis for current and future Navajo Court deliberations, Austin admits that there is a great deal of work left to be done to understanding and incorporate vast knowledge. Austin, next, frames the above broad philosophy as a context to better contextualize his specific knowledge on h0zh=, k'4, and k'47.

The last three chapters focus on broad concepts of Navajo philosophy imbedded in even broader notions of Navajo Fundamental Principles. The concept "H0zh=" is treated both abstractly and concretely. As stated before, the concept refers to a state of being in balance with all that is around you. But such an ideal is not something that humans can experience purely. Rather, humans probably get a glimpse of h0zh= in their day to day life. Austin explains that this glimpse comes in the form of obligations and responsibilities to family and relatives, as well as people in general. Since all Navajos, normatively, should adhere to these same obligations, the individual is also the responsibility of other family members and other people in general. When a person fails to furnish or be furnished via obligations and responsibilities, the situation moves into h0chx= meaning that some imbalance is present. Hence, the philosophy and the contemporary justices find themselves in a position to counterbalance things back toward h0zh=. Today, the concept of h0zh= is what might be considered "right" and h0chx= may be considered "wrong" but even this over simplifies the situation. The presence of entities which will contribute to h0zhx= can be empirically observed as Naay44 or forces which disrupt h0zh=. Naay44 first needs to be identified, neutralized, then the situation can return to h0zh=. Hence, justices of the Navajo Court are tasked [*313] with just this process to solve contemporary problems.

Austin goes on to document ways in which Navajo philosophy informs problem solving today in court opinions. The courts have stated in opinions that Navajo Common law should guide current and future legislative interpretation from all polities (Navajo Nation, federal, state, international law, etc). The various examples of application highlight the salience of Navajo philosophy today in adversarial (litigation) and non-adversarial (peacemaking) contexts. Austin supports the success of the Navajo Philosophy and its ability to solve problems by looking at the 2006 year of litigation and peacemaking, citing 73 appeals in 59,841 cases heard (p.81). This is a success rate of 99.87%. Austin goes into details on the specific cultural norms which guide Navajo Justices.

Chapter four, K'4, discusses the nature of clan and the obligation or responsibility inherent within it. Austin attempts to explain the relations among all beings in a holistic manner but, as he explains, it is difficult to have these holistic concepts come through in English. This kinship is salient at a universal level (among elements fire, water, earth, and wind), on a planetary level (earth and sun), and on an individual level. Yet the individual level of kinship involves human to human levels, universal levels between earth and sun, and spiritual levels between humans and holy beings. The multifaceted and multi-dimensional aspects of kinship require maintenance of balance (h0zh=) in order to keep things from descending into chaos. Austin goes on to document the ways in which specific aspects of k'4 are used in contemporary Navajo Court opinions (p.94). Examples include ties to common law (p.95), adoption of non-Navajo law (p.97), pursuits in clarity of law (p.105), individual and community rights including individual freedoms and responsibilities (p.109), Navajo Due Process (p.111), humility in leadership (p.118), appointing leaders (p.119), freedom of speech (p.120), rights of criminal defendants (p.124), and Miranda Rights (p.128).

Chapter five, K'47, involves clan and decent yet is limited by Austin to its role in domestic Navajo life. After a lengthy but necessary explanation of various iterations of clan ties, Austin examines how k'47 frames many domestic legal matters between biologically and non-biologically related Navajos to one another and to non-Navajos. K'47 is directly tied to traditional marriage (p.146), traditional divorce (p.151), traditional property concepts (p.151), duties and responsibilities (p.152). The notion (perhaps laws) of k'47 have many impacts on the decision making process of Navajo Court justices. Austin cites various court cases that have relied on notions of k'47 for their resolution in chapter five including marriage (p.159), divorce (p.168), alimony (p.171), child custody (p.173), marriage property (p.179), wills (p.183), estates (p.187), and grazing and land use permits (p.189). After reading through these chapters on application, it becomes very clear how traditional teachings have a role to play today and tomorrow.

It is difficult to find fault with Austin's work. Perhaps a detailed index of cases with cross references to specific concepts, specific issues, and specific [*314] resolutions would make application and accessibility more attainable. Austin also raises a serious concern by calling for more research into the 12 levels of knowledge, and I echo the call now. Finally, while I read Austin's text, I often envision images of two and three dimensional arrangements which might better explain relationships between the vast concepts mentioned. As such, I would suggest working with an illustrator for future editions as a way to further illuminate dense and abstract concepts. Finally, as an aside, the research here may also be supplemented with a history of individuals and important events in Navajo Courts. Perhaps it is the duty of other authors to place Austin and others names in historical context so that the history oriented may learn of the true and vastly underrepresented role that people like Ray Austin, Robert Yazzie, Tom Tso, Louise E. Grant, Eleanor Shirley, and Herb Yazzie (just to name a very few) have played in the making of the Navajo Courts yesterday, today, and tomorrow.

REFERENCES:

Bobroff, Kenneth. 2004-2005. "Dine Bi Beenahaz'aanii: Codyifing Indigenous Consuetudinary Law in the 21st Century." TRIBAL LAW JOURNAL 5.

CASE REFERENCES:

WILLIAMS v. LEE, 358 U.S. 217 (1959).

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