Judicial Branch reform under way

Herb Yazzie'
Chief Justice
Navajo Nation Supreme Court
April 25, 2013

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T he Judicial Reform Act established the Judicial Branch as a separate governmental branch in 1985, emphasizing judicial independence and checks and balances at Title 7 of the Navajo Nation Code. Since then, there have been numerous developments in Navajo Nation law, federal law, and also technical and infrastructure changes within the branch and the Navajo Nation government. These changes now require an update to Title 7. Work sessions within the branch are currently underway to review Title 7.

The first thing that is being addressed by the branch is the way Title 7 is written. Because it was modeled on the laws of other jurisdictions, it does not contain statements of mission and philosophy that are specific to our Navajo Nation.

It also contains lengthy procedural provisions that are more suitable to be addressed separately in court rules. Based on our own work sessions, Title 7 will need significant re-drafting in all its sections to keep pace with the last 30 years of developments.

Secondly, because of the checks and balance protections written into Title 7, it is now part of our organic laws. There are certain statutes in the Navajo Nation Code that establish the structure of the government and are therefore considered the core of the Navajo government.

For example, Title 1 establishes the underlying philosophy and the rights and freedoms of the people. Title 2 establishes the concept of separation of powers and checks and balances. Title 7 acknowledges the way the Navajo people resolve their disputes and establishes a court system that is free from political influence.

These are known as "organic laws" which are subject to approval by the Navajo people. There is a need to review Title 7 not only with the legislators but also with the Government Development Commission and the Navajo people.

Thirdly, there very likely will be governmental differences in the reform of any laws deemed organic.

The Navajo Nation courts, like many judiciaries, are the weakest governmental unit as a result of lack of our own funding. Courts everywhere are dependent on their legislatures for funding. Additionally, we have, over half a century, withstood political winds in which court decisions have had a hand in limiting government as our nation matures and gains a firm sense of what it will be, side by side with other jurisdictions.

Historically, there have been many attempts to control our judges. In the 1950s, there was an experiment to elect judges. In the 1970s, the Council created a separate appellate body, consisting only of Council delegates, to handle governmental disputes. Neither of those methods was successful and they no longer exist.

The lesson learned is the permanent need for a separate and impartial judiciary.

Title 7 now provides assurances of judicial independence, the right of access by the people to fair and independent remedies, the observance of Diné bi beenahaz'áanii, and the protection of the rights guaranteed by the Navajo Nation Bill of Rights.

Our courts continue in their reputation for strong leadership among tribal jurisdictions during a period in federal Indian law in which the tribal right to self-determination and self-governance has been under prolonged siege in the federal courts. The judicial branch understands its obligation to maintain our strength and independence, both internally and externally, if the Navajo Nation is to continue as a sovereign nation.

At this time, the selection and removal of judges remains in Council's control. Appointments of justices and judges are presently by the president with confirmation by the Council. Evaluations of probationary justices and judges are by the Chief Justice and Judiciary Committee (now the Law and Order Committee). Removal of justices and judges is by recommendation of an independent Judicial Conduct Commission to the president and Council for reasons of misconduct.

In order to ensure the stability of the courts, it is time for an independent commission to be made responsible for appointments and evaluations.

This may best be achieved by using a "merit selection" system through an independent commission and without an election component. Selection and evaluation through such a commission would ensure accountability, stability and independence. It would also render unnecessary the need for elective candidates to raise funds, advertise, and make campaign promises, all of which can compromise judicial independence.

Two-thirds of the United States and the District of Columbia select some or all of their judges under the merit system.

The sovereign differences of our courts from other jurisdictions should be included in any reform. Revisions to Title 7 should reflect the solutions reached over our decades of experience as to how bi-cultural processes are to be applied in our court proceedings.

The hybrid and controlled nature of proceedings need to be set forth for future generations and ensure the proper conduct of bi-cultural courts.

There are also developments in technology, including the capability of our courts to finally convene virtual hearings using state of the art HD monitors. Such equipment was acquired using federal grants due to the great distances on our rural nation. An "e-court" method of electronic filings, electronic discovery, electronic payment and Web access to basic information regarding Navajo Nation court cases is presently being developed and will need legislative authorization for implementation.

Federal law has also come round to an acknowledgement of the restorative nature of Indian justice. The recent Tribal Law and Order Act calls for "alternatives to incarceration" to be developed with tribal courts. A definition of Indian justice should finally be included within the organic portion of Title 7 as a basic responsibility of the Navajo Nation judiciary.

The Peacemaking Program is on the cusp of providing services within isolated communities themselves, while local governance certified chapters are permitted to establish a peacemaking system or administrative procedure for resolving disputes.

In addition to restorative justice, the Tribal Law and Order Act amends the Indian Civil Rights Act to allow tribal courts to sentence offenders for up to three years imprisonment, a $15,000 fine, or both for any one offense.

It also authorizes tribal courts to stack sentences for up to nine years total imprisonment. In order to utilize this enhanced sentencing authority, tribes must provide a number of defendant protections.

Discussions will explore whether there is a resolve to implement the TLOA's enhanced sentencing provisions.

Discussions must also begin on whether or not the Navajo Nation will participate in the reauthorized Violence Against Women Act, which permits "Special Domestic Violence Criminal Jurisdiction" over certain non-Indian offenders for a "participating tribe."

If the Navajo Nation elects to participate, defendants are entitled to certain rights including "all other rights whose protection is necessary under the Constitution of the United States in order for Congress to recognize and affirm the inherent power of the participating tribe to exercise special domestic violence criminal jurisdiction over the defendant."

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