Courts & Peacemaking in the Navajo Nation

◄     A.          HISTORY

The history of our judiciary begins in our ancient history. According to the Journey Narrative, the People journeyed through four worlds and, in the course of their journey, came upon many problems both natural and caused by the People, which had to be resolved before the journey continued. The solution begins in a place of chaos, hóóchx̨o’/ anáhóót’i’.  When hóóchx̨o’/anáhóót’i’ 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, hózh̨ǫ́ójí k’ehgo nįná’íldee’ iłhááhodidzaa ná’oodzíí’. In short, the concept of Diné justice is founded on the achievement of sustainable hózh̨̨ó, which is in the People’s own hands, and it is the duty of the judiciary to maximize this responsibility as far as our processes allow.

Our modern courts began with the Navajo Court of Indian Offenses established by the Bureau of Indian Affairs Court in 1892. The Navajo Nation court system was established in 1959 with trial courts and In the 1970s, a Supreme Judicial Council was added. 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.

In 1982, the Peacemaking Court was established by vote of the Judicial Conference. The word “court” was subsequently removed and the community-based roots of peacemaking were acknowledged and protected. More recently in 2012, the Navajo Nation Council, Law & Order Committee approved an extensive amended plan of operations for peacemaking that greatly expands its services while placing priority on the cultural education of all disputants, especially families and children.

◄     B.           Judicial Independence, Sovereignty, Checks and Balances,
Separation of Powers and the Anti-Corruption Principle

Our courts were originally patterned on the modern American adversarial court system and have embraced the principles of judicial independence, checks and balances and separation of powers. We have gone one step further and embraced the anti-corruption principle, which is the bedrock of our fundamental laws. In addition, our courts are guardians of tribal sovereignty.

These principles are set forth at the Navajo Nation Code, Title 7, Sections 101-853, which are considered the plan of operations for the branch enacted under the Navajo Nation Judicial Reform Act of 1985 and further refined over time. Sections 201-424 contain the infrastructure and jurisdictional scope of the branch codifying separation of powers, judicial independence, and checks and balances expressed elsewhere in the Navajo Nation Code, including the Title II Amendments of 1989 which confirmed separation of powers of the three Navajo Nation governmental branches. Title 2 contains the core laws establishing our Navajo Nation government. At Title 1 are our fundamental laws, Diné bi beenahaz’áanii, on which our historical moral and ethical approach to government, including dispute resolution, is based. Diné bi beenahaz’áanii is the document that guides Navajo Nation leadership. While we lack a single Constitution, our organic laws set the limits for permissible governmental action, which must observe separation of powers and checks and balances.

The laws that have established our judiciary “shall be so construed as to effectuate its general purposes and in such a manner as to assure judicial independence, the right of access to fair and independent remedies, the observance of Diné bi beenahaz'áanii, and the protection of the rights guaranteed by the Navajo Nation Bill of Rights.” Our jurisdiction is calculated to ensure justice, strengthen our ability to enforce and apply the law as strong and independent courts. Under the Judicial Reform Act, we are obliged to maintain our strength and independence “if the Navajo Nation is to continue as a sovereign Nation and to move forward toward the reality of a three branch form of government.”

◄     C.           JUDICIAL DISTRICTS

The Navajo Nation is historically a clan-based society. However, during the detention of the Navajo People at Bosque Redondo (1863-1868), Navajos were divided into twelve villages, each with a “chief” selected by governing military who collectively served as a jury, with the commander of Fort Sumner serving as the judge for those crimes. Upon the People’s release and return to our homelands, the village system evolved to a “chapter” based system established by the Bureau of Indian Affairs. The Judicial Districts of the Navajo Nation are each organized around constituent chapters.

In 1988, judicial districts in Chinle, Crownpoint, Kayenta, Shiprock, Tuba City, Window Rock, and Ramah were established. Ramah then included the satellite courts of Alamo and To'hajiilee.

In 2006, the Alamo and Tó'hajiilee satellite courts became a distinct Judicial District.  In 2007, Dilkon and Aneth Judicial Districts were established. Finally, in 2012, the Dził Yijiin Judicial District, located at Pinon, Arizona, was established as the eleventh judicial district of the Navajo Nation. 

◄     D.          STRUCTURE

The Navajo Nation operates a two-level court system: the trial courts and the Navajo Nation Supreme Court, which is the appellate court. Cases begun in the trial courts may be appealed to the Supreme Court, as may decisions of administrative agencies such as the Office of Hearings and Appeals and the Navajo Nation Labor Commission. The Supreme Court sits in Window Rock. The Navajo Nation courts handle over 50,000 cases per year.

Three appellate justices sit on the Supreme Court, headed by the Chief Justice who is also the chief administrator of the Judicial Branch. The Chief Justice supervises the judges and heads the Judicial Branch. The Chief Justice directs the preparation of the budget, sets and implements policies, and oversees Judicial Branch operations. Eighteen judge positions serve the district courts.

In addition to the courts, peacemaking—a community-based system of cultural education and dispute resolution—is supported by the Judicial Branch.

◄     E.     JURISDICTION

Courts.  The Navajo Nation courts have general civil jurisdiction and limited criminal jurisdiction. Our civil jurisdiction covers all persons (Indian and non-Indian) who reside in Navajo Indian Country or have caused an action to occur in Navajo Indian Country. Our criminal jurisdiction covers all crimes codified in the Navajo Nation Code along with its terms of punishment. The Navajo Nation courts have criminal jurisdiction over Indians and non-Indians who have assumed tribal relations with Navajos. There are limits to what sentences may be given. Additionally, Diné justice emphasizes restorative justice, which cannot be properly administered due to a lack of facilities and resources.

The Navajo Nation family courts have exclusive jurisdiction over cases involving domestic relations, probate, adoption, paternity, custody, child support, guardianship, mental health commitments, mental and/or physical incompetence, name changes, and all matters arising under the Navajo Nation Álchíní Bi Beehaz'áannii Act. The Navajo Nation district courts have jurisdiction over all other cases, including land disputes. The Navajo Nation Supreme Court has jurisdiction over appeals of final decisions of the trial courts and certain administrative agencies. It also has jurisdiction to issue special writs.

Litigants can present their cases, without an attorney, to a district court using small claims rules, provided the amount claimed is within the amount threshold provided in the small claims procedures. In addition, there are certain other requirements for this procedure.

Peacemaking. People can also use Navajo peacemaking to resolve their disputes. Peacemaking is extrajudicial and uses Navajo fundamental law in a community setting. The consensus decision of the participants achieves hózhóji k'é náhóodleel (peacemaking). Generally, participants have chosen the traditional method over the courts and do not wish to be involved in formal court procedures. Peacemaking may be used to resolve many issues including land use permits, validation of paternity and marriage, dissolution of marriage, correction of records, traditional adoption, guardianship, declaration of death, and probate. Peacemakers are also asked by judges to make sentencing recommendations and obtain participants' consensus regarding nályééh, a traditional Navajo value through which harmony is achieved.

◄     F.            COURT PRACTITIONERS

Navajo Nation Bar Association (NNBA) membership is required to practice law in the Navajo Nation courts. To become a member, an applicant must have proper moral character and fitness, and pass an examination. There are over 400 members of the NNBA. The membership consists of attorneys (law school graduates) and lay advocates (non-law school graduates, but with legal training). The NNBA’s disciplinary committee hears complaints against lawyers and advocates and disciplines when necessary.

People can represent themselves in the Navajo Nation courts. In criminal cases, counsel can be appointed for a person if the person is unable to afford counsel and there is a possibility of incarceration. A form must be filled out to request a court appointed attorney.

◄     G.          NAVAJO NATION SOVEREIGNTY EXPRESSED THROUGH OUR LAWS AND CHOICE OF LAWS

Under our choice of law statue (7 N.N.C. § 204), the courts of the Navajo Nation shall first apply applicable Navajo Nation statutory laws and regulations to resolve matters in dispute. The courts are required to utilize Diné bi beenahaz'aanii (Navajo Fundamental Law, consisting of Traditional, Customary, Natural and Common Law) to guide the interpretation of Navajo Nation statutory laws and regulations. The courts shall also utilize Diné bi beenahaz'aanii whenever Navajo Nation statutes or regulations are silent on matters in dispute before the courts. The courts shall apply federal laws or regulations as may be applicable. Any matters not addressed by Navajo Nation statutory laws and regulations, Diné bi beenahaz'aanii or by applicable federal laws and regulations, may be decided according to comity with reference to the laws of the state in which the matter in dispute may have arisen.

Diné bi beenahaz'aanii are all the laws of the Navajo People, including the customs, values, usages and statutory laws of the Navajo people. Diné bi beenahaz’áanii and the Navajo Nation Bill of Rights require the Navajo Nation courts to safeguard the rights of individuals. One important right is the right to a jury trial. There are other rights guaranteed to people by these laws. Lawyers and advocates regularly argue Diné bi beenahaz'aanii before the Navajo courts. Navajo Nation statutory laws are found in the Navajo Nation Code. Legal opinions of the Navajo Nation Supreme Court and of the trial courts are published in the Navajo Reporter. Court rules of pleading, practice, and procedure are found on the Judicial Branch website at https://courts.navajo-nsn.gov .

Unlike the larger society, all tribal lands and resources are held by the government for the benefit of the People, and therefore our very government belongs to the People to a far greater extent, and in a fundamentally different capacity. Fundamentally, the judiciary is the People’s judiciary

Our choice of law statute acknowledges our unique, sovereign laws and, therefore, is fundamental to Navajo Nation tribal sovereignty. As an indigenous American government whose heritage is protected by the federal government under the Indian Self-Determination and Education Act, our judiciary has, from the very beginning, embraced its duty to serve as the guardian of our tribal sovereignty. We assert our sovereign principles and emphasize in our opinions the various bases for our sovereignty while also explaining our sovereignty’s cultural and social context.

◄     H.          AN AMERICAN HERITAGE

As the federal policy of Indian self-determination moves forward into its fourth decade, the Navajo Nation is growing into a stable sense of our government according to set and coherent principles.” Our courts and our peacemaking system emphasize that even though our laws are not covered under the Constitution, we are an American society caretaking a Navajo heritage which is also the heritage of the American people, and our laws are American laws of a unique American sovereign governing system.

◄     I.             INDIGENOUS JUSTICE

We say, with pride, that we are an indigenous People, whose territories have become part of another system, but whose culture maintains its distinctiveness. We are embrace the concept of political rights that have been set to protect indigenous peoples by international organizations such as the United Nations, which has issued the “Declaration on the Rights of Indigenous Peoples.” This declaration protects the collective rights of indigenous peoples to our distinctive identity and upholds our responsibilities to future generations. We, in the Judicial Branch, are doing our part to see that these rights are implemented in practice in our courts. Our system of justice is at the forefront of ensuring our language, our culture, and our ethical systems are nurtured and advanced.

Judges and Justices are the guardians of Diné justice. Judges must see that justice before the law is done to all, no matter who they are, what they have done or are said to have done, and thereby to set aside self-interest. Additionally, our Court Administrators are guardians of the processing of cases. Much depends on justices, judges, and court administrators to properly fulfill their roles.

Our responsibility is to safeguard the source of power as flowing from the People, and to safeguard and implement Diné dispute resolution processes whenever proper to do so. For decades, we have sought to explain and include Diné custom and tradition into court processes. K’é – principles of relationship, courtesy and respect – is the prevailing law to be applied in our traditional methods. Since time immemorial the Navajo people have applied their customs and traditions in dispute resolution. Even with the Navajo Court of Indian Offenses run by the Bureau of Indian Affairs, the Navajo judges of that court, under often adverse circumstances, continued to apply Navajo customs and traditions in cases brought before them. Navajo courts of today are no exception, they apply customs and traditions as the laws of preference.”

◄     J.             LEGISLATIVE OVERSIGHT

The Law and Order Committee is the oversight committee for the Judicial Branch of the Navajo Nation and all administrative legal tribunals, effective May 2011. The Committee is one of four standing committees of the Navajo Nation Council and consists of five members, whom are all Council Delegates. The Committee holds regular meetings three times a month, pursuant to Navajo Nation Code.