“Thank you, Steve [Cornell]. Now I’d like to call to the podium Dr. Manley Begay, who’s also a co-director of the Harvard Project on American Indian Economic Development and he’s also the director of the Native Nations Institute at the University of Arizona who will introduce our next speaker.”
Manley A. Begay:
“Good morning everyone. Hope everyone had a real nice sleep. I did. For those of you that are about six feet, three or four inches or taller, I have a real important question to ask you. How do you stand underneath those showerheads? It’s a real funky showerhead. Did you guys notice that? When you turn it, it turns off and you have to have it going down. I thought it was kind of interesting.
Let me just sort of say a little bit about what Steve mentioned. When I joined the Harvard Project back in 1988, it was really quite interesting that these two white guys were out running around Indian Country trying to figure out things. And they were actually lost. And when I showed up, I showed them the way. Sometimes I regret it. I’ve known these guys for so long, we joke about one another. They joke about me. They say, ‘We’ve known him for so long that we remember when he had dark hair.' So I say, ‘Well, I remember when they had hair.’ It’s very interesting how things have occurred down through the years.
This next presentation, what’s every interesting about this is that you have essentially, under some trying circumstances, an individual or a group of individuals that rose to the occasion to really set up a mechanism by which to ensure that government, the Navajo government in this case, had a checks and balance system and had a separation of powers. And it was really an outgrowth out of some trying circumstances, essentially a mini revolution. It’s unbelievable to hear the stories underneath the story. The amount of courage, the amount of tenacity, and the amount of foresight that was used by Chief Justice Robert Yazzie and the other judges in the midst of some turmoil in the Navajo Nation, and it’s not unlike countries throughout the world. And in this case, in the world’s most wealthiest nation, you have these problems and issues. And interestingly enough, the Navajo Nation, through the leadership of Robert Yazzie and others, rose to the occasion and handle issues, resolve disputes that were pressing to Navajo Country and they set their mark.
It was really a story about how we as Indian people can resolve our own issues without outside interference. And stories we hear about problems and turmoil throughout the world really points to the make or break characteristic of nation building, which is a strong and independent judicial system with strong and also well trained leaders. And I think the Navajo Nation court system is an example of that among other court systems as well out here in Indian Country. I would venture to say that the Navajo Court System is as strong or stronger than some of the best court systems throughout the world. And it’s because of that the Navajo Court System was recognized. And interestingly enough, Robert Yazzie and others stood their ground and created for all of us an innovation, a creation that will last for a very, very long time rooted in Navajo common law as the law of the land, which is the way it should be. It’s really an example of a culturally appropriate leadership as well as a culturally appropriate institution.
And with that I’d like to introduce Robert Yazzie. He is Bit'ahnii, that’s his mother’s clan. His father’s clan is Tódichííníí. His nalí, or his relatives on his dad’s side, is Kinyaa’aanii and on his mother’s side is, his mother’s father’s clan is Áshiihii. So Áshiihii and my clan, Ma’ii Deshgizhnii are the same clan so we call each other Cheíí or grandfather. Chief Justice Yazzie has been on the bench for 16 years and has been a chief justice for 10 years. He’s a graduate of the University of New Mexico Law School back in 1982 and also is a graduate of Oberlin College back in 1974. So with that, the Honorable Chief Justice Yazzie.
Yá’át’ééh! I was going to say como esta? I have to say something like that in Santa Fe. I wish to thank Mr. Andrew Lee -- and I always have to look up to him when I talk with him -- for this opportunity to invite the Navajo Nation judicial branch to give…to make comments about the contribution of the branch to good governance.
As an opening I would like to talk about Justice [David] Souter’s concurrent opinion in Nevada v. Hicks, which is very troublesome to all of us. He said, when this past summer, Associate Justice O’Connor, Sandra Day O’Connor and Justice Breyer came to the Navajo Nation to observe the Indian justice in Indian Country. And much of what they said is different from what the way Justice Souter said in his concurrent opinion. He said, ‘Non-Indians are in danger of unwarranted intrusion on personal liberty in Indian courts.’ And he gave a basis for that and said, ‘The U.S. Bill of Rights does not apply to Indian nations. And when you look at the Indian Civil Rights Act, it does not include all its guarantees. Indian courts apply customs, traditions and practices.’ And he said, 'This is very difficult for non-Indians to work out, to understand.' He said, 'There is no appeal of a tribal court decision in state or federal court or removal to the federal court.' And the last one he said is, 'Tribal courts are often subordinate to political branches of tribal government.' All he’s saying and all what Justice O’Connor and Breyer said, 'We don’t trust you, period.' So it’s interesting what Justice Souter had to say in his concurrent opinion. It flies in the face of the work being done by the Harvard Project on American Economic Development and its members. While that’s the case, if you read the reports, the studies, testimonies of the project, and what we just heard just now, it works. And that’s how we see it and that’s our position and it’s very important and the only thing that we need to do is go to Congress to undo what the U.S. Supreme Court did to us. We have to show to Congress that we have evidence that sovereignty works. If federal court doesn’t trust Indian courts, then Congress must.
It is interesting that the contributions of the Navajo Nation judicial branch has made to good governance involves the very thing Souter complains about: customs, traditions and practices, and we call it Navajo common law. He said, ‘This is unusually difficult for outsiders,’ and I don’t agree with that whatsoever. When we look around we see people, people who are of fine mind, people who are distinguished, who say that the approach, the traditional Indian law, is the best you can ever have when it comes to approaching problems. And there are articles, for example the American Journal of Comparative Law, Robert Cooter, Wolfgang Fickinger of the University of California at Berkeley. They praise the system and there are other writers who say that when you look at the Indian world, you find models like Navajo peacemaking is a leading model. And if you look at our Navajo common law jurisprudence, you will see that we have something in common with state courts of last resort decisions.
In [the] 1970s, U.S. Supreme Court gave a very strict reading to the U.S. Bill of Rights. They denied certain civil rights and liberties. State courts reacted and said, ‘Well, then, we’re going to read similar provisions in our state bill of rights in a way that will better serve the rights of our citizens.’ And when you look at the Navajo situation, you will see that we do have a Navajo Nation Bill of Rights. And if you just look at the Navajo notion of basic rights, you will see that there’s more protection given than what the U.S. Constitution has to offer. The Navajo, the 1985 Navajo Nation Bill of Rights, guarantees the right to life, liberty and property as fundamental right and we have the Equal Rights Amendment to guarantee gender equality.
Life, liberty and property, who’s definition should we use? When American law talks about life, it talks about situations where the government takes someone’s life. When we [Navajo] talk about life, we say iiná, and iiná is not just about living. It’s about a way of life. Iiná is located in the west and if you have life after you prayed about it and reflected to form good thoughts from the east Nitsáhákees, the thoughts. Your mind starts from the east every morning and if you develop a good plan based upon prayer, reflection and discussion, what we call nahat’á from the south direction. So life means much more in Navajo thinking than it does in American constitutional law. What about liberty? In Navajo we say t'áá bí bóhólnííh, t'áá bí bídéét'i'. It means, ‘it’s up to him.’
The Navajo Nation Supreme Court has made it clear in several opinions that the Navajo concept of liberty guarantees more freedom than the Anglo concept. And when we talk about property, I have seen paranoia in discussion over Navajo Nation economic development because people say they are afraid of the Navajo Nation council messing with home site leases that are mortgaged. Some refuse to recognize the Navajo Nation courts would not permit that under our Bill of Rights. In addition, we recognize customary property rights and Navajo common law is very concerned about individual’s right to property. So as the Navajo Nation, we’ve talked about individual rights, we also talk about collective rights, and those two are not isolated. They work hand in hand and they work very well. As it is with several states, we give a more expansive and better reading to our Bill of Rights. It is one which responds to Navajo expectations. The Navajo Nation Supreme Court has said that the expectations of the Navajo people are a source of law under our due process clause. So a question here, do American courts say the same thing about the expectations of American people in decisions.
In 1982, things weren’t working out quite as well with the courts. The cases were going up and up. Today we have 76,000 cases and people are becoming more and more dissatisfied when we as judges render decisions, lawyers are forever fighting. So what about looking at what we used to have 200-300 years ago? There is a system that lived, that was in existence at that time. Locked out was just locked behind closed doors. When we look at the system that was there from time immemorial, we saw that there were decisions made about people. Who makes the decisions about important aspects of people’s lives is an important aspect of Navajo common law is what we learned in 1982. While we adopted an adjudication system, adversarial system where judges make the decision, or all decisions, we also had a method for people to make their own decision and we find out that the more you do that there’s good decisions, there’s strong decisions, there’s better decisions, decisions that last a long time, something that does the job, something that gets to the bottom of things. So we have referred cases to that system where the people can look at it, make the decision. Something that we couldn’t resolve in court we'll resolve over there.
So who would have thought in 1982 that by the year 2002 the United Nations would be looking at a traditional Indian method of dispute resolution as a model? Who would have thought that today legal scholars would be taking a serious look at traditional Indian law as a source of law and justice and vengeance? One of the very positive aspects of the Harvard Project on American Indian Economic Development is the fact that it not only promotes Indian nation sovereignty, it points out to Indian traditions as a source of economic success. So when we talk about good governance movement, we have to be serious because it is something, it is a movement that’s going on at the international level. There are positive aspects of it in the international law as people are talking about subjects such as inclusive government, participatory democracy and the rules of law.
What contributions did we make to good governance in the Navajo Nation? Now you see Navajo legal terms and opinions, legislations and law articles. When we look at our Bar Association, we have 400 members; we have non-Indian, non-Navajo, as well as Navajos. So as a justice when we hold oral argument, we now can see that people are bringing claims for defenses based on Navajo common law and they even use Navajo legal word or two in oral argument in court. We now have a body of case law in published opinions that answers Justice Souter’s concern about understanding traditional Indian government. We spell it out clearly in decisions written in English that are available for any interested reader. As for federal judicial review of the fairness of decisions, what is there to review? Our decisions are clear. They show the principles which apply and why and they give predictability to court decisions in the future and people are very happy about that.
At end, what we call sovereignty isn’t something given to us, you or I. When you read the law definition, it’s pretty bad because it talks about absolute power, absolute authority. Our definition is quite different. It speaks to the dignity and individuality of everyone. It talks about sharing and caring. It embodies respect for the individual. It promotes participatory democracy. Question: do we face any dangers? Answer: certainly. There are some people who forget the role of a court is a step between the individual and his or her government when there are abuses. There are those who would deny that judges have a sacred obligation to uphold fundamental rights guaranteed in both Navajo Nation Bill of Rights and Navajo common law. There are a few who mock our interpretations of due process from a Navajo point of view. They are not Navajos. If due process is fairness, then what is fair? There’s a saying in a cartoon. The character says, ask the magic mirror, ‘Mirror, mirror on the wall, who’s the fairest of them all?’ The answer, ‘The Supreme Court.’ We like to think it’s the Navajo Nation Supreme Court. That is our challenge: what’s fair [and] what our traditions and sacred wisdom tell us as they have handed down to us in our oral traditions.
We were honored by an award based upon the Navajo Nation judicial system’s promotion of Navajo common law principles and procedures. That is a high honor indeed. As you know, the late Al Harris received that honor. He’s no longer with us today, but he did his best to get us where we needed to be. It is somewhat frightening too because the honor is a challenge to maintain our efforts. The first justices of the Navajo Supreme Court have now retired. They have set the high standards for which we were honored. I follow them, others will soon follow me. I can only hope that the standards we have put in opinions, court rules, judicial policies on Navajo common law will stand the test of time and I think they will. Why? If Navajo common law itself has stood the test of time, surviving imposed government systems, imposed courts and other imposed standards and the tax on our sovereignty, it will survive. People like Kit Carson are alive and well, and all that stands between us, and a distinction as Indians, is our law. That is why we fought for it and put it in place in our judicial system.
What is good governance? If you make reference to your Indian mind, in our case to the Navajo mind, you can look at all four directions and you can read things and one thing that you can read for sure is when you look at yourself you know who you are, you know where you’ve been, you know where you’re standing, you know where you’re going, that you are a reflection of what’s out there, the four directions. It is the Navajo common law principle of order within the four sacred mouths. So we say bee haaz aanii and that’s a word to say it’s Navajo, it’s law. But if you look at the term bee haaz aanii and ask the question, what does it mean? It’ll take you a lifetime to explain what it means. Simply it…life comes from it. Bee haaz aanii does not mean you cannot do this, you cannot do that and you cannot do that. Bee haaz aanii means, what is permitted. Bee haaz aa. So if we stand with that, we know where we are, we know our foundation, we know our future. Thank you.”
Robert Yazzie, Chief Justice Emeritus, Navajo Nation, "The Navajo Nation Judicial Branch," Presentation, Honoring Nations symposium, Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University, Sante Fe, New Mexico, February 8, 2002.
Chief Justice Emeritus Robert Yazzie of the Navajo Nation Supreme Court talks about the Navajo Nation Judicial Branch's application of Navajo common law in its jurisprudence as an example of the importance of Indigenous cultural values and common law into the governance systems of Native nations.
Yazzie, Robert. "The Navajo Nation Judicial Branch." Honoring Nations symposium. Harvard Project on American Indian Economic Development, John F. Kennedy School of Government, Harvard University. Sante Fe, New Mexico. February 8, 2002. Presentation.