Page 220 - 第三屆原住民族傳統習慣規範與國家法制研討會論文集

206 第三屆原住民族傳統習慣規範與國家法制研討會

making observations on how to resolve the problem. Then a consensus might be reached for
the thing or things to do to address the problem and the meeting will come to a conclusion.
There are two things missing from that account of how to approach a dispute or conflict
that are missing, when it comes to western law and procedure: The absence of one person
who is a powerful figure and who tells the group what must be done, and no hard and fast rule
that tells everyone what to do. No, traditional Navajo law is not based on powerful “chiefs”
sitting on a throne in council “laying down the law.” It is usually about consensus and a
process where shared values can be brought to bear on a problem.
How does that description of how we know tradition and how norms and values are
applied to dispute resolution apply to my judicial system, the Courts of the Navajo Nation?
Isn’t it impossible to use those kinds of approach in a court?
We have the irony, in the United States, that what we know today as tribal courts were
imposed upon American Indians in 1883 as a means of control. The Commissioner of
Indian Affairs set up a procedure for local agents to appoint Indians as police, to arrest people,
and to appoint Indians as judges, to finalize a police officer’s decision to arrest. It is no
wonder that the word for “prosecutor” in Navajo means “he who puts you in jail” and the
judge is “he who helps him put you in jail.” The Navajo word for police officer is the same
as the word for “soldier,” the folks who used to chase Navajos.
We had a western-styled court of adjudication imposed on us in 1892, and of course the
Navajos who were appointed as judges largely ignored the rules that were imposed as law.
The United States Congress enacted a legislature in 1934 and mandated the Bureau of Indian
Affairs to imposed a court system on all Indian tribes called the "Court of Indian Offenses"
and issued a new model code for Indian courts called the “Law and Order Code.”
The “agent to the Navajos” appointed Navajo judges to that court. When Navajos
returned from World War Two they brought new values with them, by way of electing judges
for example, and when the Navajo Nation Council said judges should be elected, the
Commissioner of Indian Affairs reminded them that their court was his court, and if they
didn’t like it, they could create their own court system. In 1959, the Navajo Nation Council
said "enough is enough" and abolished the Court of Indian Offenses and created what we
know today as the Courts of the Navajo Nation.
One of the things that made the Navajo court system different, whether it was controlled
by the Bureau of Indian Affairs or not, was the use of traditional law—of Navajo right and
wrong values and norms about what ought or ought not be done. Navajos judges used to
hide the true reasons for their decisions. For example, the Navajo judges of the old court
maintained traditional land tenure of group ownership of land in common, with provisions for
individual use. They hid that in decisions that spoke to inheritance by “the most logical heir”
and in trusts where a senior family member held land title for named family members of the
upcoming generation.
The generation of Navajo judges who immediately preceded me started the conscious
policy of using traditional Navajo law in around 1980—when the chairman of the Navajo
Tribal Council said he wanted to bring Navajo tradition back to the law. The prior
generation did two important things: First, they declared that they were going to use and
apply Navajo custom and tradition under the name “Navajo common law”. Second, they
rediscovered the traditional Navajo justice procedure, hozhooji naat’aanii or Navajo
peacemaking, and incorporated it into their western-styled court system. It is a system that
is based on discussion and attempts to achieve consensus with the help of a community leader,