Envisioning legal frameworks for Diné Fundamental Law

Envisioning legal frameworks for Diné Fundamental Law

By Herb Yazzie, Therese Tuttle, Mike Hamersky, and Josey Foo

Editor’s note: Herb Yazzie is the former Navajo Nation chief justice who served from 2005 to 2015. Therese Tuttle specialized in the law cooperative corporations for over 23 years. Mike Hamersky is the Climate Change and Land Use Policy fellow at the Elizabeth Haub School of Law at Pace University. He is also an adjunct professor at Fordham University’s School of Law, where he received his law degree. Josey Foo served as attorney in the chief justice’s office for the Navajo Nation Supreme Court for eight years. Foo is the executive director of Indian Country Grassroots Support.

Every Diné knows that the Diné Fundamental Law has long been under great stresses. The immutable law remains unknown to lawyers. Younger generations struggle to find support for knowing their own language, in which our immutable laws are conveyed. Nonprofits of various kinds present Diné wellness models as if they are entirely separate from principles of governing. Or, nonprofits address single topics of urgent importance to our people, such as food sovereignty or water conservation, without joining together to repair our whole way of life. All generations want historical teamwork to be restored, which is what k’é and hózhǫ really means. Yet none of it is understood fully by the lawyers, non-profits, youngsters, and even those many elders among us who were subjected to having wisdom and knowledge wiped out in boarding schools.

In a few short weeks on August 5 at Twin Arrows, we will be coming together in a forum to tell each other our legal and principled frameworks so that, at the very least, the foundations of Diné Fundamental Law will be in the minds of lawyers and the people. This is so that both may get to work to relieve the stresses that have long pressured Diné cultural practices. These stresses include generational efforts by the federal government to wipe out knowledge among the Diné people. The forum, entitled “Live, Work, Govern using Diné Fundamental Law,” will kick off a partnership between the Diné people and lawyers who acknowledge the western system’s flaws, and who believe the Diné people have more than sufficient cause to be suspicious of such lawyers. However, suspicions must be set aside. We are at a critical time not only for permanent loss of Diné cultural being – the loss of living Diné ways – but also at a time of great danger for Mother Earth and her beloved creatures.

The lawyers and planners who will be present at Twin Arrows are from Pace University Law School’s Land Use Law Center, from a premier cooperative law firm which helped draft legislation for cooperative law in California, and from the USDA–Strengthening Co-op Capacity for Historically Underserved Farmers program. What they will all be saying is, “We’re in.” We are in with getting behind tribal envisioning expressed by the Diné people themselves, to set aside legal frameworks that oppress that vision, and come up with new frameworks that need such an envisioning to come into being.

Diné Fundamental Law is not an anthropological study, nor is it merely for individuals to learn self-sufficiency, the Four Directions, k’é and hózhǫ as if it were merely a religion, or merely exercise like yoga, nor is it performative, nor should it be limited to a few phrases introducing ourselves in Diné bizaad, nor is it just the Diné gentleness and consideration in speaking.

The foundation is the Life Way itself, that it’s high time lawyers get with the program, abandon their anthropological preconceptions, and provide the legal help for the Life Way to actively function through all applicable laws, both federal and tribal.

It can be done. It can be done.

1 N.N.C. § 204. Diyin Dine’é Bitsąądęę Beenahaz’áanii (Diné Customary Law (1 N.N.C. § 204)) declares these “rights and freedoms” – knowledge of the values of principles for living in balance and beauty with all creation (hózhǫ), the sacred system of k’é, the sacred Diné language, the protection of the unity and wellbeing of each family, and the empowerment of everyone especially children to participate in the growth of the Navajo Nation on the basis of the immutable law.

Last year, in the first “Envisioning Diné Bikéyah for our families in 102 years” held in Window Rock, families envisioned a paradise in which language was known and teamwork was practiced. Above all, youth envisioned their elders planning their future properly for them, in which their ingenuity would be treasured alongside language and teamwork. It appeared to be the consensus that such planning is not taking place.

Lawyers and planners know only what the people choose to let be known to them. We have to begin including them in knowledge, and task them with making sure our immutable laws are not watered down, distorted, or otherwise destroyed.

Unless we are clear-minded, lawyers may not be able to help us. Remember it is not anymore about lawyers telling us what we can do, and then us filling in the blanks only to be told by them that we are still asking too much, or that what we intend to ask is inappropriate for the western governing system.

No, in our sovereign nation today, it has to be about Diné people asserting what makes us distinct as a people in the very governing systems and life and work practices that have been unraveled since before Hwéeldi. Our assertion must include telling lawyers what Diné Fundamental Law sets forth for a team approach to living, working and governing, how our system centered on local matriarchies, naalchiidi and naachid that allowed local independence and interconnectedness to share innovations and solve problems in ways the western systems do not work.

An essential aspect of Diné Fundamental Law is what has been translated as the “Diné family,” groups of five-fingered beings who team together in mutual love and adherence to k’é and hózhǫ, for the purpose of achieving generational goals. In many areas – including Naschitti in the Chuska Mountains – such inter-familial teamwork has involved customary land use areas, with stories passed down of communal droving of our livestock in large numbers. Families talk about structured communal teamwork. Yet, structured communal teamwork in which familial labor over livestock is shared, and in which livestock themselves tell us what they may need, has not been possible since Livestock Reduction in 1933.

Lawyers do understand that the circumstances surrounding Livestock Reduction no longer apply, yet the regulations remain on the books. Science has moved on from 1934, when the carrying capacity of district land units was first established. The same carrying capacity numbers from those days appear to still be in use today, limiting livestock to boundaried areas regardless of season or communal ingenuity. The misassumptions of science from back then seem to be known widely, yet the federal system machine is slow to move. Remember that the federal system is intended to be a non-moving structural system. In the federal system, it is the localities that have the quick ability of partnerships, problem-solving, and swift innovation.

At this time in our long history into the past and viewed towards the future for all our generations to come, we need to end regulations that stifle communal cooperation and ingenuity, particularly in the treatment of our livestock, and one another, and Mother Earth.

The rest of the world knows that ecosystems and human beings must be in balance. Places meant to be protected cannot merely be set aside and isolated from other beings. On the Navajo Nation, we know there are insufficient resources to cull and maintain undergrowth, and our forest areas themselves are decaying from isolation from relationships with other creatures, cut off from the complex and beautiful pattern of mutual nurturing by Mother Earth and all its beings.

It is time to cease second guessing ourselves and approach our own patterns and practices exactly how they are intended.
Information on the “Live, Work, Govern using Diné Fundamental Law” forum on August 5, 2024, at Twin Arrows may be found at https://indiancountrygrassroots.org. Walk-ins are welcome.

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