Eliminating Diné Bizaad from law books won’t resolve issues

By Teddy Begay

Editor’s note: Teddy Begay is from Tódineéshzhee’.

I would like to make a response to last week’s Guest Column by Katherine P. LeBlanc, Esq., about the “Eliminating the language requirement for Navajo judges and justices.” Also, Boderra Joe, Navajo Times reporter because they coincide with the Judicial Branch.

There is a word in comparative philosophy, “Normative Chauvinism” that is applicable. It refers to having a dominate influence known as lingua franco; Latin: to mean an adopted common language not spoken between speakers of different native tongues. It comes from history as a ‘trade’ language. On every Indian reservation, if we want something – it is done in English – a result of enforced assimilation carried out by compulsory education.

The infamous BIA Boarding School policy to “Kill the Indian, Save the Man.” Under this hostile slogan, we, as Native youths received our education. Back in the Boarding School days we fought over, “Red on the outside White on the inside,” because we didn’t like to be called traitors. Not knowing that old cliché has betrayed us lacking to put other original thoughts behind it. BIA schools ruined us. Nothing intended. Just a recall of memory that today’s generation do not have to live through.

To get back to the point, there is something abnormal about being “Bossy.” Chauvinism in particular is an “Eurocentric” idealism to do whatever it wants, carried across the ocean believing that their jurisprudence is far superior and insofar think others are different and inferior to make the grade. Chauvinism is better known as male prejudice against women. The term ‘normative chauvinism’ refers to prejudicial concept of one’s own self-image is superior, is well taught and learned. In this case, influential learning in adversarial judicial institution of Americanism. Western Law will take everything you’ve got and more, leaving you penniless. “Keh” takes a backseat, pits opposing parties against each other, where money makes the difference. Seeking truth is compromised: attorneys focus on winning at absorbent high prices. To take our Navajo language away from our tribal court system would take an Act of Congress as they say.

Katherine, the 7 N.N.C. Sect. 354 (A)(5) is in part the foundation of Codified Indigenous Consuetudinary Law put to use into Navajo Judicial Civil Law in the 21st Century (Nov. 1, 2002) to build upon. It will take an Act of Legislation by our Council Delegates to eliminate our Navajo language from the law books because the origin of the Navajo language is formally recognized in the Fundamental Law as Diné Bi Beenahaz’áanii, given by our Holy People we obey and live by. The four specific elements are: Traditional law, Customary law, Natural law, and Common law.

Most people don’t know what “Consuetudinary” means. According to Oxford English Dictionary: “custom recognized as having legal force; the unwritten law of customs” to be aware is the adopted law of the Navajo Nation and operating from it with its constituency – The Navajo People. International Law at least recognizes immemorial customs existing from antiquity before colonial laws ever existed. American jurisprudence does not recognize our “customary law.”

There is national sui generis (Latin: “of its own kind”) law, which uses Generis Law to approach the law differently and uniquely in international courts: To be able to develop a hands-on relationship with a client (Navajo Nation) and help them along their journey; and to empower their clients to accomplish their goals and dreams through creative solutions. It is believed this is the right approach to take since it deals with consuetudinary law.

The outside courts do not attempt to define consuetudinary “customary law” as one legal bona fide term (in Good Faith). It is treated differently with Indigenous and other ethnic cases. Foremost, the idea of “customary law” put under consideration concerning the laws, practices, and customs of Indigenous peoples and local communities do not have a precise and technical meaning based on custom, or practice between the Navajo Nation and its constituency. “Customary International Law” has a more precise and technical meaning in the realm of rules governing relations between distinct States, i.e. trade and commerce in World Trade referring to those aspects of international law that are based on custom or practice between states or nations. At the local level, customary law practices are understandably better suited adopted and modified to their cultural standards. Provisional language of the law is already set to improve upon in the Navajo Nation since 1989, but we are lazy that put us in the state, Katherine P. LeBlanc Esq., writes about.

Katherine writes, “…. despite excessive researches, the Navajo Nation has been unable to fill its judicial vacancies, due in large part to a lack of candidates that can speak Navajo.” And she goes on to say, “…the reality is that this is simply an impractical if not impossible requirement for several reasons.”

She points out numerous qualifications and problems, as in any state of the union that holds true to their statues. Here, there is only one exception, “being able to speak Navajo.” It seems to be the biggest hurdle to overcome by our own people, yet it should be their native tongue. At the end she states, “The Navajo language requirement mandate found at 7 N.N.C. Sec. 354 (A)(5) should be eliminated and amended to considered it a ‘preferred’ qualification.” Preferred is a rhetorical provision language on many law books is a dead-ringer for watered down versions with little to no legal adherence. Preferred left standing will eventually be forgotten, because it was once preferred – but a “requirement” has legal weight.

I thank you for your second part report, “Navajo Supreme Court and its broken court system.” You revealed such a grim status of our court system researched more extensively was even more disturbing. I am not a lawyer and was dishearten as I read. Your concern showed a systemic problem at the core as a root cause, but eliminating our Navajo language won’t resolve your issue at hand. It is a Navajo Nation problem. It should be a wake-up call for the other two branch of government. This is not the way to maintain a balanced government that the people have entrusted their elected officials.

The difference in our viewpoint might be incommensurable and could be an overstatement, as I do with your usage of “eliminating” the Navajo language requirement from the Navajo Nation Judicial Branch. The silencing of our language is what the old BIA slogan stood for will become a reality. What more can we give-up? Our customs and traditions have been lost to colonialism, wars, and missionary efforts. On the other hand, many tribes still maintain their unique identity that honors their rich ancestral heritage. In our case, it is embedded in our Navajo language.

What will it do to us. Our identity will be lost if we betray ourselves again with the lack of original thought of preservation behind it. We will lose our language and our identity. A paradoxical conclusion: we may look Navajo but if we can’t speak our own language. Then who are we?

A Catch-22 is when an individual cannot escape because of contradictory restrictive rules. Many Eastern Seaboard Indians were exterminated and those that survive feel lost because their native tongue slips right through their hands, and the same assimilation boat is being prepared for us in the Southwest. This is a sure way to do it and has been attempted during the presidential race for the Navajo Nation years back. We will not know our clanship and what would that do to our gene-pool our ancestors so passionately taught us to memorize to know who we are. The entrapment is believing that Western adversarial law tradition is the best because we are still considered as inferior.

Incommensurability sets itself so far apart that it cannot be judge by the same standard that has gone out of proportion as a dichotomy. Some things have grown even farther apart. You cannot bring them back together again because they don’t understand each other, inability to share concepts, no common ground of understanding is incommensurability. I sense your frustration, Katherine, because as an attorney you are very compartmentalized, you take care of business, like to finish your cases, and move on to the next. Against a backlog! I can only sympathize with you.

Granted, all unsettled legal matters should have their day in court. The adversarial system does ensure fair trial guarantees to uphold due process standards to promote transparency. Look at how former President Donald Trump is using the U.S. judicial system. He uses adversarial tactics to mislead, encourages delays to cover-up his own criminal doings, then claims he is the victim when it is of his own doing. All the while impeding true discovery of the whole truth. He is banking to win the election so he can throw out the criminal charges and evidence against him. He is doing this because he has the money to focus on winning and proving his case can overshadow the pursuit of truth. If Trump wins – he will have shown us, he is above the law. How much confidence will the American people have in the U.S. Supreme Court then?

For the rest of us, we do have the right to legal representation but there is a lack of equality to get the best legal protection. If we allow this total control of adversarial nature of law, we are sucked-in, and we must contend with it. I do believe the people and the Navajo Nation have something to say about what your profession is suggesting.

Currently, there is no governing body with teeth in the U.S. that really protect cultural heritage by state and federal Indian lands. Perhaps we need to send our Native American Indians (NAIs) to be trained in International Law Schools, instead of adversarial attorneys going against each other. Maybe there we might find some protection as Federal Indian Laws are running roughshod over us. You know, without thinking or caring about our rights or opinions. A conservative estimate: somewhere around 40 to 1 court cases favor NAIs. We must protect what little quasi-sovereignty we have been given because the only sanctuary we have left is our reservation.

On the front page, Boderra Joe, Navajo Times reporter writes about “Judicial Branch Celebrates 65 Years.” She quotes, former Chief Justice Robert Yazzie, sharing his thoughts, “What if one day we wake up and see that we no longer have a Navajo court system?” And further adds, “What if our courts were placed under the complete authority of the state and federal court system?”

It sounds like we don’t have a proper and full running order of our Navajo Nation Judicial System because there is a breakdown, a failure to function like it should. Why are our elected officials not paying attention? This is maddening! Are they looking out for their prestige, photo-ops, and being rhetorical that everything is honky-dory? Where are our unbiased true journalists? They should be investigating things of this nature, instead following leads on innuendos within tribal departments and employees. I can go on and on.

Be that as it may, this is not the gist of my concern. It is the elimination of our Navajo language brought a step closer to a moribund state by our own people. Those of us who can relate to preserving our language are not willing to stand by to see it die and wither away.

It is essential to maintain our political integrity so that it can function as a self-governing entity. Instead of eliminating our language, we need to look elsewhere. There must be an Ethics Committee, an overseer like former NN President Peterson Zah (he is missed), who used to put our leader’s feet to the fire, reminding people of what is going on in our tribal government. And why the other two branch are not cognizant of the overload of court cases should have many people worried.

It is not a small problem Katherine has shined a light on. It’s a wake-up call to the law makers, the Council delegates, the Executive Branch who carry out these laws, the Judicial Branch who oversees and makes sure they are adhered to for the people to run a good government: Where are you? Where is the Ethics Committee? Where is the Judicial Committee? The Law and Order Committee?

If you public elected officials allow to continue a breakdown in one branch, you will eventually allow a collapse of our Navajo Nation. What Former Chief Justice Robert Yazzie shared with Boderra might happen? I’m just giving a snapshot of what could happen. A worried member of the Navajo Nation.

I hope all ends well.

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