Chief Justice: Working toward a true Navajo judicial system
By Bill Donovan
Special to the Times
WINDOW ROCK, December 27, 2012
He's been doing this by promoting the use of Navajo traditional law in decisions both on the district court level and on the Navajo Supreme Court. Almost every opinion issued by the court in 2012, as in past years, contains a section on how Navajo traditional law speaks to the issue and how the final decision is derived from laws passed from previous generations are still relevant today.
"We still need to listen to our grandmother and grandfather," Yazzie said, adding that the traditional Navajo value system is still relevant today as it was 200 years ago.
You can still see this within the Navajo judicial system with the over-growing importance of the Peacemaker Court to the process of providing Navajo people with a fair and just system of law.
Yazzie pointed out that under the peacemaking system, the emphasis is on rehabilitation and developing a lasting solution, rather than one of punishing the wrongdoer or sending them to jail where they won't be a problem to the community.
The problem with punishment, said Yazzie, is that when the person gets out of jail – and since the tribe can only put a person away for a year – they will eventually go back to the community and usually their conduct will be just as bad if not worse because of imprisonment.
"The jails do not make an effort to help the person to become a useful member of his community when he completes his sentence," Yazzie said.
While it is good that the nation has the ability to put violent offenders behind bars, the system still will not address the overriding problems of what brought the person to commit the act in the first place and, under Navajo traditional law, that kind of question needs to be addressed.
That's the reason, Yazzie said, that he feels a bigger tribal jail system and the opening of two new jails in 2013, should not be considered as a solution to the tribe's growing crime problem.
In 2012, realizing the importance of the peacemaking system – which is unique to the Navajo tribal government – money was provided through a federal grant to extend its reach into rural Navajo communities.
Later, in the year-end interview, he went back to the problems with the western system of justice.
"It's an adversarial system in which each side selects a champion to speak for their system. That is not the Navajo way," he said.
Another issue that was addressed this past year, said Yazzie, was how the tribal courts conduct hearings.
Most hearings are conducted in a combination of the English and Navajo language since elderly Navajos are more comfortable in the Navajo language while English is the language used for the court's written records.
This causes problems, however, for the fact that court reporters, those who type the transcript of the trial, are more prone to knowing English than Navajo and when the case comes up for review, there would often be large parts of the hearings left empty with the reporter only saying that the testimony was in Navajo.
"What happens is that the most important part of the hearing and the place where fundamental Navajo law will most likely be discussed is not being translated," Yazzie said.
He also pointed out that the tribe does not have a court reporter program of its own and often the parties are required to provide their own.
As a result, the members of the Navajo Supreme Court would have to go to the recording of the hearing and find the sections where Navajo was spoken and listen themselves to what was said, a process that is very time consuming.
Because of this, Yazzie put in for a federal grant of $200,000, which was approved, that will allow for the training of Navajo court reporters for the first time.
Navajo Technical College in Crownpoint will be working with the Navajo Judicial Branch to train Navajos as court reporters, which would allow translations of Navajo into English as the hearings went along.
This emphasis on traditional Navajo legal thinking could be a reason why the Navajo Supreme Court remains one member short and has been for the last two years.
At year's end, the supreme court consisted of only Yazzie and Associate Justice Eleanor Shirley, which meant that Yazzie had to draw from the district courts or retired judges to serve as the court's third justice, something that Yazzie said he would prefer not to do.
Navajo Nation Department of Justice senior staff attorney Regina Holyan was recommended for the vacant associate justice position but the Navajo Nation Council did not approve the appointment during the fall session in October.
Yazzie also talked about one of the decisions rendered by the Navajo Supreme Court, which dealt with district court judges failing to meet deadlines mandated under court policy to hold a hearing or render a decision.
While most, if not all, of the judges have a large caseload, Yazzie said it is important for the credibility of the courts that judges follow the law and meet deadlines even if it requires the judges "to adjust their personal calendars or their daily life."
He said his office is making efforts to make sure that judges are educated on this important aspect of their court duties.
Speaking of the court's workload, Yazzie said during the seven years he has served as chief justice, he has seen the number of cases that come before the court increase exponentially to the point where "the number of cases here far exceed any other Indian court system."
At the same time, he said, his office has not seen the number of qualified applicants meet the increased needs.
And while the number of Navajos graduating from law school is increasing, the judicial branch cannot compete with salaries that are being offered elsewhere for these lawyers.
And he pointed out that when Navajos go to law school, what they learn is the Anglo system of law and those who come back to practice on the Navajo Reservation, most of the have to be educated on Navajo fundamental law so they can practice before Navajo courts.
The year-end interview took place, as it has in the past several years, in Yazzie's cramped quarters in the old Damon Building where most of his staff has had to exist when the old trailers in Window Rock were condemned and the staff was forced to move out.
In 2012, however, the judicial branch has come a step closer to fulfilling a dream of Yazzie's – to have a supreme court complex built.
A design for the building has been competed but the branch is still trying to find the $15 million it needs to build the complex. Land for the complex has already been found east of the tribe's police building and Yazzie has been pushing the legislative branch to issue bonds to raise the money needed to build the complex.
If that does not work, Yazzie said his office would seek federal funds to make it a reality.
The need for new supreme court facilities is not being made solely to make life more comfortable for the chief justice and supreme court employees, but Yazzie has stressed over the years that having hearings in cramped offices or in dilapidated buildings does not instill confidence in people coming to the supreme court for a ruling.
It's partly a credibility issue, Yazzie has said, but it's also a matter of image and that's something that a lot of people don't look at when they hear the supreme court is asking for that much money to build a supreme court complex.