Law & Courts

Supreme Court justices air their views at Yale

By Cindy Yurth
Tséyi' Bureau

NEW HAVEN, Conn., Nov. 21, 2011

Although the Navajo Nation Supreme Court was lauded by the deputy dean of the Yale Law School last Monday for balancing "elements of Anglo law with elements of Navajo traditional law," Chief Justice Herb Yazzie declared during a question-and-answer period here that he hoped that wouldn't always be necessary.

"I feel that, years down the road, those distinctions won't be necessary because we will develop a system that we can call our own," Yazzie said.

The justices had traveled from Window Rock to hear a case before an audience of students, professors and others interested in Indian law. Afterward, observers were treated to a rare glimpse into the justices' personal thoughts on the Navajo judicial system.

Yazzie in particular was critical of the "vertical nature of decision-making" in the American legal system and complained that he and the other justices were "not comfortable" sitting "up here above you" on the elevated podium of the school's auditorium.

The traditional Navajo way of settling disputes, he explained, was to gather all the parties together and give everyone a chance to talk.

"The important thing is not who wins or loses, but whether the relationship can be re-established between them," he said.

In criminal cases, he said, the emphasis is not on punishing the offender but on determining "How can this behavior not be repeated? How can he learn? There should be help getting the person back into society."

Asked how the court regards information from oral tradition, Yazzie replied that Diné Fundamental Law is based on oral tradition.

"Our laws are reflected in our values, our culture, our tradition," he said. "They are ancient laws. They are oral. These laws are immutable. Human beings cannot change them, from our perspective."

Yazzie also had strong words for the federal government.

"There's an assumption by many people that the Navajo Nation court is an instrument of the federal government," he said. "It is not. There is an assumption that the Navajo Nation is subject to the laws of the federal government. It is not.

"The difficulty comes from unilateral actions of the federal government when it enacts laws that affect indigenous nations on American soil."

Another observer expressed surprise upon learning that many Navajo judges come from the ranks of the DNA People's Legal Services, noting that being a public defender is seldom a path to a judgeship off the reservation.

Both Associate Justice Eleanor Shirley and Yazzie replied that their passion for the law came from watching grassroots people struggling with it.

Shirley said she worked for the DNA during the Navajo-Hopi land dispute and witnessed wholesale confusion.

"They didn't quite understand how even their divorce cases could be impacted by federal law," she said.

Added Yazzie, "I can remember my grandparents, in bewilderment, wondering out loud how it is that this government, so learned in matters of technology, so sophisticated in matters of government, how it can dictate without being humane."

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