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Navajo courts and Navajo common law

Dissertation
Author: Raymond Darrel Austin
Abstract:
The Navajo Nation courts use ancient Diné (Navajo) customs and traditions or Navajo common law to decide cases. While the concepts called Navajo common law are free-flowing, communal, and egalitarian, the forum where they are used, the Navajo Nation court, is adversarial and uses adopted American court rules to strain traditional concepts to relevancy. Incorporating Navajo common law into American-styled court litigation is a difficult process. Navajo common law is rooted in Navajo philosophy, while the forum of its application is of Anglo-American design. The Navajo judges, nonetheless, have developed methods using adopted American rules of evidence, particularly the expert witness rules and the judicial notice doctrine, to bring Navajo common law into Navajo court litigation. This work focuses on three foundational Navajo doctrines, hozho (harmony, balance and peace), ke (kinship solidarity), and k'ei (clanship system), to analyze how the Navajo judges use Navajo common law to resolve legal problems. The three doctrines are first examined within the Navajo cultural context and then the case method of analysis is employed to explain how the Navajo judges engage the incorporation process. The three doctrines are not laws that can be applied to legal issues, but their derivative norms and values are applied as laws in the Navajo Nation courts. When the Navajo Nation courts use Navajo common law in their written decisions, they are at once preserving Navajo culture, language, spirituality, and identity for future Navajo generations. When the Navajo people use Navajo common law in their courts and in the overall operations of their government, they are not only exercising sovereignty the Navajo way, but also nation-building the Navajo way. The methods used to incorporate Navajo common law into modern Navajo government can serve as a model for American Indian tribal governments and indigenous peoples around the globe who desire to resurrect their ancient ways of governance. So long as American Indians and indigenous peoples retain their cultures, languages, spiritual traditions, and identities, they have in place traditional frameworks that can be used to solve modern problems.

4 TABLE OF CONTENTS

ABSTRACT.........................................................................................................................8 INTRODUCTION.............................................................................................................10 CHAPTER I. THE NAVAJO NATION...........................................................................15 A. Brief Navajo History................................................................................................15

1. Demographics and Contact...............................................................................15

2. Fort Sumner (Hweeldi).....................................................................................16

3. Traditional Navajo Government.......................................................................26

4. Modern Navajo Nation Government................................................................31

CHAPTER II. THE NAVAJO NATION COURT SYSTEM..........................................37 A. History......................................................................................................................37 1. Introduction.......................................................................................................37

2. Navajo Court of Indian Offenses......................................................................38

3. Navajo Nation Creates its Court System..........................................................48

B. Modern Navajo Nation Courts.................................................................................55 1. Structure............................................................................................................55

2. Jurisdiction........................................................................................................59

CHAPTER III. FOUNDATIONAL DINÉ LAW PRINCIPLES......................................62 A. Modern Navajo Law................................................................................................62 B. Navajo Common Law Underpinnings......................................................................66 C. Finding and Using Navajo Common Law in Court.................................................71

5 TABLE OF CONTENTS — Continued

CHAPTER IV. HOZHO (PEACE, HARMONY AND BALANCE)...............................80 A. Overview of Hozho in Navajo Culture....................................................................80 1. Descriptions and perspectives of hozho............................................................80 2. Levels of knowledge.........................................................................................86

3. Hozho and Hochxo represent right and wrong..................................................89

4. Nayee’ disrupt hozho.........................................................................................90 5. Traditional Navajo problem-solving model......................................................92

B. Hozho as Used in the Navajo Nation Courts............................................................93 1. Theoretical constructs.......................................................................................93 2. Navajo common law informs legal interpretations...........................................95 3. Goal is to restore hozho.....................................................................................98 4. Restoring hozho in individual rights cases......................................................103

5. Restoring hozho in domestic cases.................................................................107 6. Restoring hozho through nalyeeh (restitution)................................................112

CHAPTER V. K’E (SOLIDARITY THROUGH POSITIVE VALUES)......................115 A. Overview of K’e in Navajo Culture.......................................................................115

1. Harmonious relationships...............................................................................115 2. Kin giving, sharing and support......................................................................121 3. Political affairs................................................................................................125 4. Traditional notions of equality........................................................................127 5. Traditional leadership.....................................................................................128

6 TABLE OF CONTENTS — Continued

B. K’e as Used in the Navajo Nation Courts..............................................................132

1. The court’s duty to use Navajo common law.................................................132 2. The rule on adopting Bilagaana law...............................................................138

3. Principle of Nataah Nibikiyati (Participatory Democracy)............................143

a. Ashjoni adoolni (“make things clear” rule)..............................................149

b. Application of “talking things out” rule....................................................150

4. Principle of Házhó’ógo (Freedom with Responsibility).................................152 a. Navajo due process...................................................................................155 b. Leadership standards.................................................................................164 c. Free speech................................................................................................166 d. Rights of criminal defendants...................................................................170 e. Jury trial....................................................................................................175 f. Miranda rights............................................................................................177

5. Principle of Ch’ihónit’i’ (Equity)...................................................................181

CHAPTER VI. K’EI (DESCENT, CLANSHIP AND KINSHIP).................................186 A. Overview of K’ei in Navajo Culture......................................................................186

1. Introduction to k’ei..........................................................................................186 2. K’ei determines relatives.................................................................................188

3. The four basic clans........................................................................................190 4. Source of Navajo clan system.........................................................................196 5. Traditional marriage........................................................................................198

7 TABLE OF CONTENTS — Continued

6. Traditional divorce..........................................................................................206 7. Traditional property concepts.........................................................................207 8. Traditional probate..........................................................................................209 9. K’ei fosters duties and responsibilities...........................................................210

B. K’ei as Used in the Navajo Nation Courts.............................................................215

1. Marriage..........................................................................................................219 2. Divorce............................................................................................................233 a. Alimony.....................................................................................................238 b. Child custody and support........................................................................240 c. Marital property........................................................................................251 3. Probate............................................................................................................255 a. Wills..........................................................................................................257

b. Estate property..........................................................................................261 c. Grazing and land use permits....................................................................265

4. Land Use.........................................................................................................271

CHAPTER VII. CONCLUSION....................................................................................278 REFERENCES................................................................................................................282

8 ABSTRACT The Navajo Nation courts use ancient Diné (Navajo) customs and traditions or Navajo common law to decide cases. While the concepts called Navajo common law are free-flowing, communal, and egalitarian, the forum where they are used, the Navajo Nation court, is adversarial and uses adopted American court rules to strain traditional concepts to relevancy. Incorporating Navajo common law into American-styled court litigation is a difficult process. Navajo common law is rooted in Navajo philosophy, while the forum of its application is of Anglo-American design. The Navajo judges, nonetheless, have developed methods using adopted American rules of evidence, particularly the expert witness rules and the judicial notice doctrine, to bring Navajo common law into Navajo court litigation. This work focuses on three foundational Navajo doctrines, hozho (harmony, balance and peace), ke (kinship solidarity), and k’ei (clanship system), to analyze how the Navajo judges use Navajo common law to resolve legal problems. The three doctrines are first examined within the Navajo cultural context and then the case method of analysis is employed to explain how the Navajo judges engage the incorporation process. The three doctrines are not laws that can be applied to legal issues, but their derivative norms and values are applied as laws in the Navajo Nation courts. When the Navajo Nation courts use Navajo common law in their written decisions, they are at once preserving Navajo culture, language, spirituality, and identity for future Navajo generations. When the Navajo people use Navajo common law in their courts and in the overall operations of their government, they are not only exercising

9 sovereignty the Navajo way, but also nation-building the Navajo way. The methods used to incorporate Navajo common law into modern Navajo government can serve as a model for American Indian tribal governments and indigenous peoples around the globe who desire to resurrect their ancient ways of governance. So long as American Indians and indigenous peoples retain their cultures, languages, spiritual traditions, and identities, they have in place traditional frameworks that can be used to solve modern problems.

10 INTRODUCTION American Indian tribes in the Western Hemisphere and native peoples around the globe share the calamitous consequences of European colonization manifested as reduced populations, removals, disastrous government policies, property loss, and destroyed cultures, languages, and religious practices. The Navajos did not escape these catastrophes. Since the first Europeans arrived in the American southwest, Navajo culture, language, spirituality, and identity (all known as the Diné Life Way – Diné bi’ó’ool’ii) have been under constant attack from the outside. The philosophy underlying the Diné Life Way has also steadily eroded over the last century as knowledgeable elders die off and each new generation of Navajos increasingly embrace Anglo-American culture. American Indian nations face a bleak future if they are not actively using and preserving the characteristics (i.e., culture, language, and religion) that distinguish them from other Americans. The nation-to-nation relationship between Indian tribes and the United States fully recognizes that the American Indian people have distinct cultures, languages, identities, and spiritual beliefs and practices that predate the American Nation. From a legal standpoint, American Indian treaties, federal statutes, self-determination policy, and court decisions all recognize the tribes’ inherent right to maintain their cultures, languages, religions, and identities as the original inhabitants of North America. American Indians must not fall into a false sense of security simply because the legal authority is on the shelf. As American history all too clearly indicates, federal Indian policies shift with the political mood; the United States Supreme Court and lower

11 federal courts relentlessly attack tribal sovereignty; and states continue to push for greater authority over American Indian lands. American Indian leaders must remain vigilant for the day America moves to end its special relationship with Indian nations on the pretense that the Indian people have abandoned their cultures, languages, religions, and identities and fully adopted Euro-American culture. The American Indian people must never underestimate the power of their cultures, languages, and spirituality, and actively incorporate them into their governing institutions, court decisions, and codes as a means of enhancing tribal sovereignty, nation-building, and cultural perpetuation. The anthropologist, E. Adamson Hoebel, instructs that societies have social postulates on which law systems rest, therefore, to properly understand a law system, the society’s postulates must be abstracted and examined. 1 Postulates, also called general propositions, determine what is “qualitatively desirable and undesirable” in a society. 2 Moreover, members of a society may not express its social postulates explicitly and disagreement on which ones are postulates should be expected. 3 Hoebel’s methodology works well for reconstructing dormant native legal systems and that can include

1 E. A DAMSON H OEBEL ,T HE L AW OF P RIMITIVE M AN :A S TUDY OF

C OMPARATIVE L EGAL D YNAMICS ,16-17 (1974) [hereinafter H OEBEL ,T HE L AW OF

P RIMITIVE M AN]; See also R ENARD S TRICKLAND ,F IRE AND THE S PIRITS :C HEROKEE

L AW FROM C LAN TO C OURT 21 (1975) [hereinafter S TRICKLAND ,F IRE AND THE

S PIRITS].

2 H OEBEL ,T HE L AW OF P RIMITIVE M AN ,supra note 1, at 13.

3 Id. at 17. This statement certainly applies to the Navajo people. The Navajo Creation Scripture and Journey Narratives vary, but the main points are similar. Navajos, however, do not agree on which are their original four clans. Disagreement is expected because, throughout their history, Navajos have adopted members of other Indian tribes who have joined their customs and traditions with Navajo culture.

12 uncovering, as yet, unidentified traditional Navajo and other tribes’ common law principles. 4 While it would be a significant and worthy project to compile and analyze the customary laws of several American Indian tribes, this work is limited to the Navajos’ experience with their common law. For well over a century, Navajo judges have used Navajo postulates in dispute resolution, and since 1969, some of the traditional principles have been applied as Navajo common law in the published decisions of the Navajo Nation courts. The Navajo Nation Council also codified some basic postulates as the Diné Fundamental Laws in 2002. 5 Thus, the case method of analysis employed here achieves the goal of explaining how the modern Navajo judges incorporate Navajo common law into a Navajo Nation Court System that uses adversarial decision-making. The Navajo common law incorporation process is also essential to building a sovereign Navajo Nation that places the interests of the Navajo people at the forefront. The foundational doctrines examined in this work are Hozho (harmony, balance, and peace), K’e (kinship solidarity), and K’ei (clan system). While each doctrine is treated separately, in actuality the three are related concepts. The common theme linking the three doctrines is the Navajo emphasis on harmony and order. As Witherspoon said, “The Navajo emphasis on harmony and order as expressed by the term hozho is an emphasis on relatedness. It is impossible to have order and harmony among unrelated

4 This methodology was employed in the following works: H OEBEL ,T HE L AW OF P RIMITIVE M AN ,supra note 1 ; K ARL N. L LEWELLYN &E. A DAMSON H OEBEL ,T HE

C HEYENNE W AY (1941); and S TRICKLAND ,F IRE AND THE S PIRITS ,supra note 1.

5 Navajo Nation Council Resolution No. CN-69-2002 (Nov. 1, 2002)(codified as 1 N.N.C. §§ 201-206 (2005). The term Diné is used interchangeably with the term Navajo in this work because they are both names for the Navajo people.

13 entities. K’e terms refer to forms of social harmony and order that are based on affective action.” 6 The k’ei doctrine controls an extensive network of Navajo clan relationships which must facilitate and maintain kinship solidarity (k’e) for Navajo society to function in hozho. The written decisions of the Navajo Nation courts contain a wealth of information on how American Indian customs and traditions achieve the status of law and then used to decide court cases. Because use of American Indian common law in tribal government functions, and particularly in dispute resolution, enhances tribal sovereignty, nation- building, and cultural perpetuation, American Indian tribes and indigenous peoples should look to the Navajo Nation for workable methods and models. The Navajo approaches include identifying basic common law doctrines, locating sources of relevant common law, introducing common law into the dispute resolution process, shaping common law to apply to issues, developing a native-based body of common law, and codifying common law principles. In addition, the Navajo Nation revived peacemaking, a traditional Navajo dispute resolution institution, and placed it within its modern court system to promote holistic use of Navajo common law in resolving disputes. Tribes are pursuing gaming and other economic ventures and these activities always bring tribal sovereignty issues to the forefront. Tribes are overwhelmed with social ills and health and education issues, but they provide opportunities for use of customs and traditions as problem-solving tools and to rekindle pride in Indian identity.

6 G ARY W ITHERSPOON ,L ANGUAGE AND A RT IN THE N AVAJO U NIVERSE 94 (1977) [hereinafter W ITHERSPOON ,L ANGUAGE AND A RT].

14 Longstanding Indian customs and traditions are always available for solving tribal problems, strengthening tribal sovereignty, and ensuring cultural longevity. Developing respect for Indian common law entails educating Indian leaders, the Indian people, and eventually mainstream America. This work is organized around three core Navajo doctrines to show that American Indians and other indigenous peoples can move into the future by drawing on their own cultural norms and values. The Navajo experience is one of going back to fundamental values. Given the disruptions of non-Indian schools, the wage economy, destruction of tribal land bases, alcohol, and an overbearing federal bureaucracy exerting daily dominance, Indians have many barriers to overcome. All those influences have eroded traditional values. However, so long as Navajos preserve their language, religion, traditions, and culture, they retain the framework for successful modern approaches. Navajo common law is not something quaint or curious — it is alive and vibrant. It adapts to the present, and it will adapt to the future. As Navajos use their values and discuss their relevance to the present, they will be able to step into the future. ... This is a process of going back, but Indians are going back to their own law — back to the future. 7 Finally, my own traditional Diné education, taught by my maternal grandparents and knowledgeable elders, serves as the basis for many of the traditional analysis in this work, including those concerning the three doctrines and their emanating values and the traditional stories.

7 Raymond D. Austin, ADR and the Navajo Peacemaker Court,32 J UDGES’ J. 8, 47-48 (1993).

15 CHAPTER I. THE NAVAJO NATION A. Brief Navajo History 8 1. Demographics and Contact An understanding of Navajo jurisprudence comes easier when one knows something about the history, language, culture, and spiritual beliefs of the Navajo people. The Navajo people speak the Athabascan language, a tongue also spoken by the Hupa and Tolowa tribes in northern California, the Apache tribes of the southwest, and several Indian tribes in northwestern Canada and interior Alaska. 9 The Navajos and Apaches form the Southern Athabascans. 10 The territory of the Navajo Nation (Diné Bikeyah) extends over northeastern Arizona, southeastern Utah, and northwestern New Mexico. The Navajo Nation also owns fee and trust lands that are separate from the main Navajo Indian Reservation, including the reservations located at Ramah, Alamo and Tójajiileeh in New Mexico, and the Big Boquillas Ranch near Seligman, Arizona. Navajo Nation lands total nearly 27,000 square miles. 11 The 2000 United States Census shows that 298,197 individuals identified themselves as Navajo. 12

8 The Navajo people call themselves Diné (The People) in their own language. According to the Navajo Creation Scripture, the Holy People created the Diné and gave them the name, “Nihookaa’ Diné’e Diyinii (Holy Earth Surface People).” The term “Navajo Nation” is not a Navajo conceit. The Treaty of 1868, 15 Stat. 667, refers to the Navajo people as the “Navajo Nation.” 9 C LYDE K LUCKHOHN & D OROTHEA L EIGHTON ,T HE N AVAJO 33 (1974 rev. ed) [hereinafter K LUCKHOHN &L EIGHTON ,T HE N AVAJO] ;N ANCY B ONVILLAIN ,N ATIVE

N ATIONS 393, 445, 496 (2001).

10 J ACK D. F ORBES ,A PACHE ,N AVAJO , AND S PANIARD vii (1960).

11 V ERONICA E. V ALARDE T ILLER ,T ILLER’S G UIDE TO I NDIAN C OUNTRY 214 (1996). 12 U NITED S TATES C ENSUS B UREAU: C ENSUS 2000, Special Tabulation (Rev.: June 30, 2004).

16 The first Europeans the Navajos encountered were Spaniards (Naakaiilbahi), somewhere near present day Albuquerque, New Mexico in 1541. 13 From the latter part of the sixteenth century to the time Anglo-Americans (Bilagaanaa) entered Navajo Country in about 1846, the Navajos engaged first, Spaniards, and then Mexicans (Naakaii), in war, slavery, and treaty-making. 14 The Navajo people, as a whole, suffered severely in its war with the United States from 1863 to 1868, a period commensurate with Anglo-American expansion into Arizona and New Mexico. 2. Fort Sumner (Hweeldi) Beginning in 1863, the United States Calvary and Indian allies under the command of Colonel Kit Carson waged a brutal and destructive military campaign against the Navajo people. Oral accounts by Navajo elders describe Carson’s campaign against the Navajos as “t’aa altso anaa’ silii’” (when everything — humans, plants, animals, etc. — turned enemy). Historians Garrick and Roberta Bailey draw the same conclusion about America’s war against the Navajos: “Though short, the Navajo war of 1863-1864 proved to be one of the most violent and decisive military campaigns ever waged against a major North American Indian tribe.” 15

13 J. L EE C ORRELL ,T HROUGH W HITE M EN’S E YES :A C ONTRIBUTION

TO

N AVAJO H ISTORY 2-3 (1976); James W. Zion, Law as Revolution in the Courts of the Navajo Nation,Federal Bar Association Indian Law Conference Materials (Albuquerque, N. M., April 7, 1995) [hereinafter Zion, Law as Revolution]. Spanish records from this period refer to Athabascan speakers as “Querechos” and “Apaches” which likely included Navajos. 14 F RANK D. R EEVE ,N AVAJO F OREIGN A FFAIRS 1795-1846 (1983).

15 G ARRICK B AILEY & R OBERTA G LENN B AILEY ,A H ISTORY

OF THE

N AVAJOS ,T HE R ESERVATION Y EARS 9 (1986) [hereinafter B AILEY & B AILEY ,A H ISTORY

OF THE N AVAJOS] .

17 Carson marched his troops through Navajo Country in the fall and winter attacking and killing Navajos at their camps, slaughtering livestock, burning hogans and crops, and virtually destroying any property and food supply the Navajos would need to survive and prolong the war. The scorched-earth campaign worked. Approximately 8,500 starving, freezing, and raggedy Navajos surrendered over several months and were death-marched on foot in four separate large groups and a number of smaller ones for over 400 miles to a barren reservation established for them at Fort Sumner (called Hweeldi by Navajos) in eastern New Mexico. 16 There, the Navajos were imprisoned under military guard from winter 1863 to June 1868. During the second year of confinement, General James H. Carleton, Commanding Officer of the Department of New Mexico, bemoaned the tremendous burden of feeding and caring for the imprisoned Navajos and Mescalero Apaches with scant funding from Washington. 17 On April 26, 1865, the military officers devised a plan intended to

16 Id.at 10. The reservation at Fort Sumner was called the Bosque Redondo Reservation. The march to Fort Sumner is called “The Long Walk.” The Long Walk was not a single march, but involved at a minimum four forced marches over different routes from Fort Wingate, New Mexico to Fort Sumner. My ancestors were held at Fort Sumner for over 4 years. My maternal great, great grandmother and her relatives left the Canyon de Chelly area near present-day Chinle, Arizona and arrived at Fort Sumner with the initial group in the winter of 1863. 17 General Carleton had to plead with his superiors in Washington for funds: I beg to impress upon your mind, General that the government should at once take some action for the immediate support and the prospective advance of the Navajos …. [T]he government is so greatly the gainer by their giving it [Navajo lands] up, that an annuity of at least one hundred and fifty thousand dollars should be given them in clothing, farming implements, stock, seeds, stockhouses, mills, etc., for ten years, when they will not only have become self-sustaining, but will be the happiest and most

18 transform the Navajos from a scattered, pastoral people into village dwelling, self- sustaining farmers. 18 Realizing that the traditional Navajo political system consisted of several independent bands, the officers decided to divide the Navajos into twelve villages, located perhaps a half-mile apart, and each headed by a principal chief. 19 The twelve-village concept came from the officers’ belief that twelve principal Navajo leaders were imprisoned at Bosque Redondo, each with his band. 20 Each village would be structured in a manner that prominently displayed its farm in front. 21

With only 400 soldiers to guard the Navajos and Mescalero Apaches, the officers apparently believed that it would be in their best interests to let the traditional band leaders exercise limited authority over their people. Moreover, a set of Anglo-American styled criminal laws was drafted to instruct the Navajo prisoners on respect for law. The Fort Sumner plan called for each designated principal chief to “carry out and enforce laws given him [by the military] for the government of his village [...]. He will be held responsible for the order and police of his village.” 22 Each village would also have a sub- chief for every one hundred persons; the sub-chief’s job would be to assist the principal chief on governing the village. 23 While the principal chiefs would exercise some

delightfully located pueblo of Indians in New Mexico – perhaps the United States …. Letter from Carleton to General Lorenzo Thomas in Washington, D.C., printed in R OBERT A. R OESSEL ,P ICTORIAL H ISTORY

OF THE N AVAJO ,F ROM 1860 TO 1910, at 31- 32 (1980) [hereinafter, R OESSEL ,P ICTORIAL H ISTORY

OF THE N AVAJO ].

18 Id.at 22.

19 Id. 20 Id. 21 Id. 22 Id. 23 Id.at 23.

19 authority, the commanding officer would retain ultimate authority over all their decisions. 24

The principal chief and his sub-chiefs would establish an American form of military trial court to try criminal charges, and the twelve principal chiefs, along with a military officer as presiding judge, would compose a military-styled appellate court. 25 In the case of jury trials, the Fort’s commanding officer (or a specially appointed military officer) would serve as the presiding judge and the chiefs would serve as the jurors. 26

The appellate court would have jurisdiction over serious offenses, including murder, theft, property damage, and AWOL. 27 The following seven criminal offenses with punishment that included hanging, whipping, imprisonment, hard labor, and fine were recommended for the Navajo prisoners of the Bosque Redondo Reservation: murder, theft, absence from or refusal to work, destroying or losing tools, destroying the reservation’s trees or farm produce, missing curfew, and being AWOL from the reservation. 28

While the military officers expressed reservations about applying Anglo- American laws of punishment to the Navajo prisoners, they nonetheless believed it was necessary to the overall civilizing process. It may appear unjust to punish people for a violation of laws which they do not only not understand, but have heretofore been taught to regard as the highest virtue to break. But it must be recollected that these Indians

24 Id.at 24.

25 Id. 26 Id. 27 Id. 28 Id.

20 have got to be made to respect the bonds which unite civilized society, and the only practical way of doing this is by inflicting a punishment, however light, for the first offence, and increasing the punishment in proportion to the increase of knowledge, until its severity would prevent further repetition. This is the only possible mode of instructing them on the subject of the law. 29

The government structure the military recommended was not fully implemented, because the Navajos stubbornly refused to depart from their kinship structure way of life and their customs. 30 The federal government’s reports on the Bosque Redondo Reservation after April 26, 1865 do not mention the proposed court system or criminal provisions so it is not clear whether they were implemented or not. 31 Modern Navajos call the Navajo Nation Court System “Diné Bi Gooldi.” Some Navajos claim that this term is a Navajo pronunciation of the words “court day” and may have originated from the officers’ announcement of “court day” at the Bosque Redondo Reservation. 32

29 Id.at 23-24.

30 D AVID E. W ILKINS ,T HE N AVAJO P OLITICAL E XPERIENCE 79 (1999)(the planned government did not take effect because the Navajos preferred to live in extended family groups); But see B AILEY & B AILEY ,A H ISTORY

OF THE N AVAJOS ,supra note 15, at 29 (“At Bosque Redondo the military organized the tribe into twelve bands and appointed a chief for each one,” citing L AWRENCE C. K ELLY ,T HE N AVAJO I NDIANS

AND F EDERAL I NDIAN P OLICY 1900-1935, at 14 (1968) [hereinafter K ELLY ,T HE

N AVAJO I NDIANS] ). The plan failed because the Navajos refused to live in a house where a person died.

31 One author suggests that the proposed court system and criminal laws were implemented: “An elaborate court system was established which was always subject to final government authority. An important element was to provide a ‘legal’ framework so as to force Navajos to work in the fields.” R OESSEL ,P ICTORIAL H ISTORY

OF THE

N AVAJO, supra note 17, at 22.

32 I have heard this theory during casual conversation with different Navajos in the past. But see Vicenti, Jimson, Conn & Kellogg: “The court (gooldi) can be seen as possibly being derived from the Navajo word for Bosque Redondo or Fort Sumner

21 Although the military constantly watched the Diné, they continued to practice their spiritual ceremonies in secrecy; particularly, those that implored the Holy Beings to return them to their homelands. 33 The several thousand Navajos who did not surrender and remained in Navajo Country likewise performed ceremonies to ensure the freedom and return of their kinsmen from Fort Sumner. 34 A well-known story from this period states that the Coyote Way Ceremony was performed after the first day of treaty negotiations to block General William T. Sherman’s recommendation that the Navajos move to Indian Territory in Oklahoma. 35

A group stood away from the [treaty] negotiations, and while the Coyote way chants were sung, a coyote entered the circle. He ran around inside it, and at one point during the chant, he broke the circle and ran to the west. That was an indication that Navajos would return west, back to Diné Bikeyah (Navajo Country), rather than to the east and Indian Territory. 36

The United States Government’s Fort Sumner experiment ended in total failure. Fort Sumner is synonymous with misery, starvation, disease, and death to the Navajo

(hweeldi), the American concentration camp in which the majority of the Navajo Tribe was imprisoned after the Long Walk.” D AN V ICENTI ,L EONARD B. J IMSON ,S TEPHEN

C ONN &M.J.L. K ELLOGG ,D INÉ B IBEE H AZ’AANII 157 (1972) [hereinafter V ICENTI ET AL ., D INÉ B IBEE H AZ’AANII ].

33 The Navajos call the Holy Beings, “Diyin Diné’e.” The Holy Beings (also called Holy People) are the Supernatural Beings that teach and guide the Navajos. 34 T IANA B IGHORSE ,B IGHORSE

THE W ARRIOR 40-45 (1990).

35 See Zion, Law as Revolution,supra note 13, at 8. I have heard similar stories from my grandparents. 36 Leonard Watchman told this story to James W. Zion, id.;See also P ETER

I VERSON ,D INÉ ,A H ISTORY

OF THE N AVAJOS 60 (2002) [hereinafter I VERSON ,D INÉ] .

22 people. Over 2,000 Navajos died at Fort Sumner. 37 The attempt to turn Navajos into agriculturists in the American mold was a total failure; the desert waste-land was unsuitable for farming and the water had high alkali content. 38 The federal government’s proposal to exile the Navajos to Indian Territory in Oklahoma was defeated by Navajo Headman Barboncito’s oration during the first day of treaty negotiations. [General William T. Sherman, American negotiator]: For many years we have been collecting Indians on the Indian Territory south of the Arkansas and they are now doing well and have been doing so for many years. We have heard you were not satisfied with this reservation [Bosque Redondo] and we have come here to invite some of your leading men to go and see the Cherokee country and if they liked it we would give you a reservation there. [Barboncito, Navajo negotiator]: I hope to God you will not ask me to go to any other country except my own. It might turn out another Bosque Redondo. They told us this was a good place when we came here but it is not. 39

The Navajo Treaty of 1868 (Naaltsoos Sani) between the Navajo Nation and the United States of America, and which emancipated the Navajo people, was signed on June 1, 1868. The Navajos see the 1868 Treaty as a sacred document to be honored, much like their covenant with the Holy People. The 1868 Treaty guarantees that the Diné will

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Abstract: The Navajo Nation courts use ancient Diné (Navajo) customs and traditions or Navajo common law to decide cases. While the concepts called Navajo common law are free-flowing, communal, and egalitarian, the forum where they are used, the Navajo Nation court, is adversarial and uses adopted American court rules to strain traditional concepts to relevancy. Incorporating Navajo common law into American-styled court litigation is a difficult process. Navajo common law is rooted in Navajo philosophy, while the forum of its application is of Anglo-American design. The Navajo judges, nonetheless, have developed methods using adopted American rules of evidence, particularly the expert witness rules and the judicial notice doctrine, to bring Navajo common law into Navajo court litigation. This work focuses on three foundational Navajo doctrines, hozho (harmony, balance and peace), ke (kinship solidarity), and k'ei (clanship system), to analyze how the Navajo judges use Navajo common law to resolve legal problems. The three doctrines are first examined within the Navajo cultural context and then the case method of analysis is employed to explain how the Navajo judges engage the incorporation process. The three doctrines are not laws that can be applied to legal issues, but their derivative norms and values are applied as laws in the Navajo Nation courts. When the Navajo Nation courts use Navajo common law in their written decisions, they are at once preserving Navajo culture, language, spirituality, and identity for future Navajo generations. When the Navajo people use Navajo common law in their courts and in the overall operations of their government, they are not only exercising sovereignty the Navajo way, but also nation-building the Navajo way. The methods used to incorporate Navajo common law into modern Navajo government can serve as a model for American Indian tribal governments and indigenous peoples around the globe who desire to resurrect their ancient ways of governance. So long as American Indians and indigenous peoples retain their cultures, languages, spiritual traditions, and identities, they have in place traditional frameworks that can be used to solve modern problems.