New Treatise Explores Navajo Common Law And Court System

The Navajo Nation court system is the largest and most established Tribal legal system in the United States. Since the landmark 1959 U.S. Supreme Court decision in Williams v. Lee that affirmed Tribal court authority over reservation-based claims, the Navajo Nation has been at the vanguard of a far-reaching, transformative jurisprudential movement among Indian tribes in North America and indigenous peoples around the world to retrieve and use traditional values to address contemporary legal issues.

In the new book published by the University of MinesotaNavajo Courts and Navajo Common Law, Justice Raymond D. Austin considers the history and implications of how the Navajo Nation courts apply foundational Navajo doctrines to modern legal issues. He explains key Navajo foundational concepts like Hózhó (harmony), K’é (peacefulness and solidarity), and K’éí (kinship) both within the Navajo cultural context and, using the case method of legal analysis, as they are adapted and applied by Navajo judges in virtually every important area of legal life in the tribe.

In addition to detailed case studies, Justice Austin provides a broad view of tribal law, documenting the development of tribal courts as important institutions of indigenous self-governance and outlining how other indigenous peoples, both in North America and elsewhere around the world, can draw on traditional precepts to achieve self-determination and self-government, solve community problems, and control their own futures.

Justice Austin, always a trailblazer, is one of the main architects of Navajo common law. Now he has given us a comprehensive explanation of his nation’s common law in all its power, fairness, and beauty. This book should be read by people the world over who believe in searching out the authenticity of law and society in its truest and most profound meanings.”  Charles Wilkinson, author of Blood Struggle: The Rise of Modern Indian Nations.

Justice Austin is the Indigenous Peoples Law and Policy Program’s Distinguished Jurist in Residence at the James E. Rogers College of Law at the University of Arizona. A member of the Arizona and Utah state bars and the Navajo Nation Bar Association, he served on the Navajo Nation Supreme Court from 1985 to 2001. Justice Austin is Diné from the Navajo Nation.
 

Why Are Tribal Courts The Last Race-Based Jurisdiction In The United States?

If an American enters the sovereign territory of Canada or Mexico and commits murder, he or she can expect to face the full weight of that nation's laws and be punished through that nation's court system.  But if a non-Native American enters the sovereign territory of a Tribe and murders a Tribal member, what punishment can that person expect to receive from the Tribe's Court and legal system?

 

None whatsoever.

 

Due to a unique set of federal legal decisions and policies, Tribal Courts have no jurisdiction to impose criminal penalties against "non-Indians", even when the crimes are committed on Tribal land or against Tribal members.  Crimes committed by "non-Indians" on Tribal land are subject to state and/or federal jurisdiction and the perpetrators face punishment under state and/or federal law, but the affected Tribe has no legal standing to pursue justice for wrongs committed against its own people.

In no other area of American jurisprudence is race - in this case "Indian" or "non-Indian" - a factor in determining whether a court has jurisdiction over a criminal defendant.  Decades ago the Civil Rights Movement helped sweep away race-based segregation and "Jim Crow" laws, but seemingly had no impact on the use of race as a jurisdictional consideration in the realm of Tribal Courts.  Indeed, the seminal Supreme Court opinion that confirmed the restrictions on Tribal Court jurisdiction was issued in 1978, more than a decade after the Civil Rights Act liberated the rest of America's population from racial discrimination in its governmental institutions.  In addition to the basic question of why race is a factor in Tribal justice, numerous other issues arise in this paradigm: Who exactly is a "non-Indian"?  Is a person with a drop of Native blood in the family lineage considered an "Indian" under this system?  What "race authority" should have the final word on determining such questions?

The US Supreme Court's opinion in Oliphant v. Suquamish Indian Tribe provides startling insight into the policies and mind-set that resulted in the limited jurisdiction of Tribal Courts.  It is striking that nearly all of the legal authority on which the court relied was from the 19th Century, when the attitudes of the American government toward Native Americans were anything but enlightened.  Citing In re Mayfield, 141 U.S. 107, 115 -116 (1891), the Oliphant Court noted that the policy of Congress had been to allow the inhabitants of Indian country "such power of self-government as was thought to be consistent with the safety of the white population with which they may have come in contact, and to encourage them as far as possible in raising themselves to our standard of civilization."  The Supreme Court's decision in 1978 also cited the view Congress took toward the state of Tribal Courts in 1834: "With the exception of two or three tribes, who have within a few years past attempted to establish some few laws and regulations among themselves, the Indian tribes are without laws, and the chiefs without much authority to exercise any restraint." H. R. Rep. No. 474, 23d Cong., 1st Sess., 91 (1834).   The idea that such antiquated and ill-informed perspectives could still be the basis for American legal policy in the 21st Century is difficult to fathom, and is a sad reflection of the persistent racial discrimination that lurks even in the land that produced the Bill of Rights.

What is to be done to correct this glaring discrepancy?  Reading between the lines in the Oliphant decision, it seems that the Supreme Court of the time felt that the restrictions on Tribal Court jurisdiction were no longer appropriate, but that under the doctrine of separation of powers an act of Congress was required to rectify the situation.  Thirty years later, Congress has obviously failed to take the hint.  In all likelihood, removing race from jurisdictional considerations for Tribal Courts will require concerted pressure and lobbying of Congress by Tribes all across the country, acting in a coordinated and united front to claim this basic element of sovereignty.