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208 第三屆原住民族傳統習慣規範與國家法制研討會

relationships?
The Navajo experiment seems to be working well, and outside observers visit us to write
long and complex law journal articles on what it is they think we are up to. As one
anthropologist observed of the process of someone from one culture attempting to “know”
that of another, “The trick is to try to figure out what it is they think they are doing.” We
know what we are doing, and we are working to articulate it better for ourselves and for the
outside world.
One of our problems is attempting to use traditional law and procedure in an
industrialized world. Is that possible? Take, for example, the problem of a credit taking
back goods (such as a vehicle) being bought on credit where the buyer does not pay in
accordance with the agreement. We require that the creditor go into court to get an order
allowing repossession, and as a matter of practice, the Navajo judges require the lawyer for
the creditor to bend over backwards to show how he or she dealt with the Navajo debtor.
Was the debtor approached in a respectful way? Was there an attempt to find out what the
problem with nonpayment was or is—loss of a job; illness; family emergency, etc.? Was
there an attempt to find a way to save the transaction and the relationship? Our procedure is
premised on the notion that a business deal, such as a credit sale, is a relationship, and you
must do what you can to preserve the relationship and make the deal work. Does it work?
Lawyers who come into our system understand it and say they like it—since they understand
the principle behind it.
Principles—made up of norms or values—become “law” when they are reduced to rules.
Some rules are stated in statutes and others are stated in judicial decisions. The
English-American common law system is largely a series of decisions by judges that state
rules and principles. They are “law.”
That is what we think we are doing—identifying our traditional rules and norms as
principles that we can write in English and state as rules of law. We have in mind educating
both the outside world and our own people. We know that, at the end of the day, indigenous
knowledge can be explained in English for use as law.
What does it take to replicate what Navajos are doing with traditional law, assuming that
we do have something to teach others? It takes confidence in your own abilities and an
understanding that there is nothing high, esoteric or mysterious about “law.” It is a very
human process of identifying, articulating and stating norms and values then restating them as
standards or procedures. It can be difficult to take knowledge that is stated in a non-linear
way, as it is with a lot of indigenous knowledge, and then translating it into western thought
in the English language. That can be done in a system of law where we reduce our world
view of norms and values into principles that can be understood in English and we simply say
that our law is law and it must be honored.
My ancestors made a treaty with the United States of America on June 1, 1868 that is
still alive and still binding. It guarantees that we, as Navajos, can keep our identities as
Navajos. Our language and culture as well. Law is actually an aspect of identity and I am
proud of mine. I have been privileged in helping frame Navajo Nation law, and I am
privileged and honored to be with you today to share the story of how we have a system of
law that is grounded in Navajo culture and tradition.