Institutional History of hózh̨Óji naat’aah

             In 1982, the Navajo Peacemaker Court was created by Navajo judges by vote of the Judicial Conference.  The judges wanted to find an alternative to Anglo-American judicial methods that had roots in Navajo common law, and which could pull in Diné wisdom, methods and customs in resolving disputes.  The court that was created aspired to protect and support the customary practice of peacemaking, hózh̨óji naat’aah, but also imposed Anglo-American court-style procedural rules on hózh̨óji naat’aah.  The judicial institutionalization of hózh̨óji naat’aah had the inadvertent consequence of changing its fundamental nature.

             Over thirty years, institutionalized hózh̨óji naat’aah more and more resembled mediator-assisted settlement. Its teaching component, its heroic component, and its dynamic life value engagement component as hózh̨óji naat’aah were not included in the peacemaker court rules and, over time, fell out of practice.   “Consent” to participate in the often emotional journey came to be equated with the Anglo-American notion of “consent” to lessen gains or losses through settlement.  As a result of the rules, the emotional component of peacemaking came to be viewed as a complication that the peacemaker ought to quieten and diffuse. 

             The Judicial Conference and Council have done their best to address the relationship problems between hózh̨óji naat’aah and the court-style processes.  In the early 2000s, the word “court” was removed from peacemaking. The late Chief Justice Claudeen Bates-Arthur replaced the peacemaking rules with “guidelines.” The Council acknowledged Diné bi beenahaz’áanii, Fundamental Laws, and created the Peacemaking Division, later Peacemaking Program, to provide education and develop hózh̨óji naat’aah throughout the Nation. 

             Recent laws expand the relationship of peacemaking with Navajo Nation institutions. The Álchíní Bi Beehaz’áannii Act (ABBA) allows agencies, professionals and family to refer matters concerning children to peacemaking for a tradition-based resolution without need for court orders as a method for diversion, self- and family-accountability and for preserving or reunifying a family.  The ABBA requires program guidance for agency-referred cases that will not involve the Navajo Nation courts. New federal grants also encourage the use of peacemaking in family group conferencing for school children.  Previously, agency referrals other than agreements under the Navajo Nation Child Support Enforcement Act were not expressly provided for in the Navajo Nation Code.

             Court referrals have also expanded. The ABBA also reinforces courts’ ability to make referrals to hózh̨óji naat’aah at any stage in children’s cases. Additionally, the Vulnerable Adult Protection Act obliges courts to discuss the peacemaking option when abuse, neglect or exploitation of elders and other vulnerable adults is involved prior to issuing a protection order.  Finally, the Supreme Court in Manning v. Abeita emphasized the obligation of our courts to provide traditional options for dispute resolution at pre-trial phases of adjudication.[1]  The Court emphasized the duty to use Diné methods of informal dispute resolution whenever permissible, primarily to aid horizontal decision-making by the parties themselves in pretrial during which court rules may be suspended, and for referral of all or part of a case to hózh̨óji naat’aah. 

             These last three decades, how a peacemaking case begins has added to an intricate and often confused relationship with the courts.  In order to emphasize that people could choose hózh̨óji naat’aah over adversarial courts, All cases—even cases for which court orders are clearly required such as divorces, guardianships, and probate—were permitted to be initiated in peacemaking with the resulting agreement “acknowledged” later via court order.  However, over time, many courts began requiring the Peacemaking Program to provide legal assistance to hózh̨óji naat’aah participants and also began requiring peacemaking agreements to be drafted in the style of legal documents.  As the legal demands of the courts grew, it became evident that the program lacked the legal ability to provide such services and should not do so. 

             In 1993, the Domestic Abuse Protection Act authorized the “Peacemaker Court” to provide remedies in domestic violence cases and made it mandatory for courts to provide victims with the peacemaking option. However, subsequent court rules limit peacemaking to “suggestions” for remedies. Later in 2000, courts began initiating peacemaking cases themselves after amendments to the criminal code called for referrals to peacemaking to determine nályééh in criminal sentencing.  This development actually helped the courts view the peacemaking method as distinct and separate from court processes in criminal sentencing matters, because in such referrals, there has never been an expectation that peacemakers provide legal assistance.  However, peacemakers have been hesitant to recommend sentencing options that are not listed on the court’s sentencing options checklist.  The hope that the referrals would result in recommendations for community-based alternative sentencing based on nályééh, k’é ná’ásdlįį, k’é níjísdlįį, and k’eedí’nééh that would come from deep life value engagement by offenders and victims in hózh̨óji naat’aah has never been realized.

             Over time, it has become clear that the independence of the peacemakers needs to be reinforced, the goal of peacemaking clarified, and the traditional components of hózh̨óji naat’aah as a distinct and separate method need to be restored for the traditional method’s effective and proper use.