Page 221 - 第三屆原住民族傳統習慣規範與國家法制研討會論文集

NAVAJO TRADITIONAL CONCEPTS & METHODS OF JUSTICE 207

now called a “peacemaker” in the court system. Peacemakers merely fulfill their role as
faciliators and not as judges. The people involved with the peacemaking process make the
final decisions. They are considered owners of their own problems with the ability to solve
their own problems.
The prior generation of judges started writing decisions using Navajo common law in
English, and they attempted to explain their reasoning. They pointed to specific customs,
but more importantly, they started articulating Navajo principles in case decisions. They
ruled that Navajo common law was the law of preference, and unless the Navajo Nation
Council clearly says otherwise, a Navajo common law principle will trump a conflicting rule
of law.
That approach can be confusing. For example, a few years ago, when our Navajo
Nation Supreme Court examined the problem of whether a criminal defendant was aware of
his right against self-incrimination, the Court invalidated a lengthy waiver of rights form by
saying there was no proof that it was explained to the defendant in a meaningful way,
including translating it into Navajo if he could not read or understand English well. The
value or the Navajo Common law the Court applied was hazho’ogo. It means “be careful.”
More broadly, it speaks to a respectful process of explaining what is going on. That
principle has been applied to other legal issues, as to a meaningful jury trial waiver and how
employers treat employees in the workplace. That expanded use of the term hazho'ogo
applies in a criminal setting to a civil one.
Another example is the amount of money a court should award when damages are
sought. The rule is that the person should receive nalyeeh, a term that means “enough so
there are no hard feelings.” How do you apply that in adjudication? It has more meaning
in a consensual and negotiated arrangement, but that is our traditional rule.
The Navajo judges articulated Navajo common law in written decisions for two decades
when the Navajo Nation Council felt it was time to put it into legislation. The problem is
that if you attempt to codify customary law you can damage it and freeze it. The Council
adopted The Fundamental Laws of the Dine` in 2002 and it establishes a framework for the
application of traditional and customary principles, used as law, rather than a series of rules.
We do have a bar association of over 400 members; most of whom are non-Indian law
school graduates. We do have Navajo practitioners, who are not generally required to go to
law school. Many have, and we are building a bar of Navajo law school graduates. All our
bar members, non-Navajo and Navajo, have problems understanding our Fundamental Law
and the Navajo common law that is part of it. Why is that?
One of the paradigms I use is that there are two legal systems in the world—vertical and
horizontal. We know the vertical system as courts of adjudication that are based on
hierarchies of power and authority, that use rules and checks and balances to temper abuses of
discretion. Most indigenous justice systems are “horizontal” or based on true equality
before the law and consensus, rather than a decision imposed by an authority figure. The
examples of traditional principles I discussed a few minutes ago perhaps highlight the
difference.
We are still figuring out the mechanics our preferential treatment of Navajo common law
principles and procedures, and it is something like trying to explain what our creation “stories”
mean or what it is that Navajos do, anyway. One of the problems many lawyers and law
professors have is that they expect bright line rules and procedures that reinforce authority
and structured discretion. What do you do with a system based on stories and on egalitarian