Navajo Courts and Navajo Common Law

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.