History of the Courts of the Navajo Nation

Prepared for the Orientation of the Judiciary Committee of the Navajo Nation February 11, 2003

Navajo Nation Museum, Library & Visitor Center

by

Chief Justice (Emeritus) Robert Yazzie

Prior to the arrival of the Spanish (1598) and the Anglos (1846), Navajos governed themselves and resolved disputes in their own way. They lived in family groups and clans, and resolved 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. They mediated disputes by encouraging people to fully talk out their problems, in order to reach agreed settlements and restore harmony in the community. Unlike European law, traditional Navajo law was not based on power but based on relationships, respect, and mutual need.

During the detention of the Navajo People at Bosque Redondo (1863-1868), Navajos were divided into twelve villages. Each village had a "chief." The Army officers adopted a code to govern the conduct of Navajos. Less serious offenses were to be handled by the village chief, and the twelve chiefs of the villages would serve as a jury for more serious crimes. The commander of Fort Sumner would serve as the judge for those crimes. Little is known of this first "court" system.

After the return from Fort Sumner, the first Indian courts - the Courts of Indian Offenses (also known as the CFR Court after the Code of Federal Regulations) - were created in April 1883 by the Commissioner of Indian Affairs. The code was designed to destroy Indian customs and religious practices, and used as a vehicle to control the Navajo People. The code of the Courts of Indian Offenses provided that agency superintendents appoint Indian judges who could have only one wife and wear Anglo-style clothes.

Many traditional practices were made crimes: polygamy, wedding gifts, traditional probate practices, etc. It was a crime to see a medicine man or woman, and be a medicine man or woman. In 1892, it was reported by U.S. Indian Agent David L. Shipley to the Commissioner of Indian Affairs that "The court of Indian offenses is composed of 3 judges and meets once a month or more frequently, if necessary. The court has done good work and relieved me of considerable business, which, in the majority of cases, can be as well if not better performed by them than by the agent. I can not call to mind a single case of theirs that I have had to reverse."

In 1892, the Navajo Courts of Indian Offenses were established. Little is known of the actual work of the early Navajo Courts of Indian Offenses, but early records show that the judges handled cases involving alcohol possession, family violence, public intoxication, and theft. A study of Navajo judges done in 1938 praises their work. 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.

Shiprock Chapter meeting, 1957

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. They were not created using federal power or authority; they are the product of a given Indian Nation's original authority. This power was not used by the Navajo Nation until the late 1950s.

The 1950s 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. The Council did away with the Courts of Indian Offenses and in its place created the Navajo Nation Courts on April 1, 1959. These courts assumed responsibility for criminal and civil matters within the Navajo Nation territorial jurisdiction.

The Courts of Indian Offenses had its own rules called the "Law and Order Code." When the Navajo Nation Courts were formed, the Council adopted the same "Law and Order Code," almost word-for-word. Shortly after 1959, the Navajo Nation Council chose to have judges elected. Based on the issue of fairness and impartiality, they soon abolished the election process and appointed judges, making their decisions more objective. The last judge appointed to the Navajo Courts of Indian Offenses was Homer Bluehouse.

In the late 1970s, 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. However, it did not hear many cases and became totally inactive by 1982. In 1985, the Navajo Nation Council passed the Judicial Reform Act to create the Navajo Nation Supreme Court, streamline court operations and, at the same time, abolish both the Navajo Nation Court of Appeals and the Supreme Judicial Council.

By the early 1980s, 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. They did so in the English language. These decisions gave a great deal of insight into Navajo common law, now the law of preference in our jurisdiction. This initiative later led to re-discovery and revitalization of Navajo style of justice, "Peacemaking" in the English language. Today, Navajo judges are mandated by the newly-enacted Fundamental Laws of the Dine to apply the principles of Navajo values in their decision-making.

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.