"CHILDREN ARE SACRED": APPLYING NAVAJO (DINE) FUNDAMENTAL LAW TO STRENGTHEN JUVENILE JUSTICE.

• Author: Eid, Troy A.

1. INTRODUCTION

   Traditional Navajo teaching holds that "our children occupy a space in Navajo culture that can best be described as holy or sacred." (1) So important is this principle that the courts of the Navajo Nation ("Nation") claim authority to assert jurisdiction over all Navajo children regardless of where they reside (2). The Nation claims more than 300,000 enrolled tribal citizens, about half of whom live on the Navajo Indian Reservation ("Reservation")--the largest tribal homeland in the country, whose territorial boundaries extend into three states and encompass 27,425 square miles or the size of West Virginia. (3)

   Dine (literally "The People," as Navajos call themselves) residing on the Reservation tend to be younger, on average, than nearly all other ethnic or racial groups in the United States. The median age of a Navajo person living on the Reservation is just 24 years old, compared with the U.S. national average of 37.9. (4) A third of all Reservation Navajos are 18 or younger. (5) Navajo households are also comparatively larger: the average Dine family on the Reservation consists of 4.36 persons, versus 2.58 per household nationally. (6)

   In addition to comparatively higher birthrates on the Reservation, members of the same extended family are more likely to live together under the same roof. Navajo households are three times more likely to be multigenerational--that is, include at least one child plus one or more grandparents--than the average for such households in Arizona. (7) The number of children under the age of 18 on the Reservation living with one or more grandparents is four times higher than in Arizona, and households led by single mothers more than twice as common. (8) Yet despite the comparatively larger size of Dine families living together, combined median household income is less than one-half that of comparable households in Arizona off-Reservation. (9)

   This Article focuses on Navajo children and the law--and specifically the application of Navajo Fundamental Law--or Dine bi bee hazaanii in the Navajo language--in juvenile justice matters such as child protection and children in need of supervision ("CHINS") proceedings, dependency, termination of parental rights, and other family settings. The Navajo term for law, bee hazaanii, refers to shared norms for living a healthy and meaningful life, which traditional Navajos believe are absolute, immutable, and have existed since the beginning of time. (10) According to this belief, bee hazaanii originates not from human beings--judges, lawyers or legislators--but has been given and entrusted to the Dine by divine beings, called Holy People. In this sense, bee hazaanii is loosely akin to the Anglo-American concept of Natural Law. (11)

   Natural Law has taken a backseat in modern U.S. jurisprudence and, when discussed at all, can be controversial. (12) In contrast, Navajo Nation judges and justices frequently invoke Dine Fundamental Law and apply it in their decisions. The Navajo Supreme Court has explained that Dine bi bee hazaanii "actually refers to a higher law. It means something which is 'way at the top'; something written in stone so to speak; something which is absolutely there; and, something like the Anglo concept of natural law. (13) Nor is the practical application of Dine Fundamental Law limited to the Navajo Judicial Branch. In 2002, the Navajo Nation Council codified Dine bi bee hazaanii in Article I of the Navajo Nation Code ("Code"). (14) The Article I amendments to the Code were a direct result of the Navajo Common Law Project, a remarkable initiative undertaken by the leaders of the three branches of the Nation's government--Council Speaker Edward T. Begay, Navajo Nation President Kelsey A. Begaye, and Robert Yazzie, Chief Justice Emeritus of the Navajo Supreme Court and Chair of the Nation's Judicial Conduct Commission--to directly integrate Dine bi bee hazaanii into every aspect of Navajo government in order to preserve Navajo culture and sovereignty. (15)

   After a very brief introduction to Dine Fundamental Law principles to provide background and context, Article I of the Code reviews recent steps taken by the Nation's government to apply bee haz'danii principles more energetically and comprehensively to children and families. (16) This includes the repeal in 2011 by the Navajo Nation Council ("Council") of the former Navajo Children's Code that was largely based on the laws of neighboring states, and its replacement with the Aichini Bi Beehaz'aannii Act (the "Act" or "ABBA"), which has since been interpreted in several court decisions. (17) Alchini means children, but the Act does more than merely change terminology. (18) Instead, the Act emphasizes Dine Fundamental Law principles repeatedly, and while retaining some familiar concepts and procedures from Anglo-American law, it incorporates traditional processes such as Hozhoji Naat'aah (Dine Traditional Peacemaking) to resolve disputes. (19)

   Instead of representing a latter-day longing for an idealized past, the Aichini Bi Beehaz'aannii Act and judicial decisions interpreting it attest to the enduring practical role that Dine Fundamental Law currently plays in the lives of Navajo children and families facing social and cultural change. (20) The process of rooting Navajo children in these foundational values traditionally begins before they are born as bee haz 'aanii is taught through ceremonies, stories, and other gatherings of extended family and clan members and continues throughout a young person's life through adulthood.

   These days, a great many Navajo children receive only limited exposure to such teaching, even those living on the Reservation, as compared to their parents or grandparents. (21) Yet the principle that children occupy a sacred or holy (bahast'i) place in Navajo society, in accordance with Dine Fundamental Law, is still widely shared and practiced by many families. In recognition of this guiding precept, for instance, the Navajo Supreme Court has repeatedly insisted that there are times and situations when children's needs take precedence even over their parents' interests. (22) This includes juveniles' rights to learn their own origins and interact positively with their relatives--not just within their nuclear families but, through formalized clan relationships, extending into entire communities.

   Such Dine Fundamental Law concepts, which may differ from comparable state-law norms and systems, are very much a part of everyday life within the Navajo judicial system. Their use is sustained through peacemaking and other traditional methods for addressing family conflict, and is a tribute to the continuing vitality and practicality of Dine Fundamental Law. The Article concludes that Dine bi beehaz'aannii is not only essential to preserving Navajo children and families, but can offer positive lessons for other jurisdictions, Native and non-Native alike, which similarly aspire to strengthen their own juvenile justice systems using culturally appropriate values.

2. BUILDING BLOCKS OF Dine FUNDAMENTAL LAW

   Traditional Navajos believe three core principles shape their lives and families: hozho', k'e, and k'ei. They are foundational building blocks of Dine Fundamental Law. Hozho', k 'e, and k'ei each trace their origins to Dine Bahane, the Navajo Creation Scripture. (23) Unlike Bilagaana (non-Navajo) courts, Navajo Nation judges directly connect these bedrock principles to their spiritual source: "The laws, culture, and value system of the Navajo People have their genesis in the Journey of the Dine from time immemorial to the Emergence into this world." (24) Consequently, the Navajo concept of justice differs markedly from Anglo-American norms. Interpreting justice from a Navajo perspective--conceptualizing and living it as Dine--necessitates an introduction to hozho', k'e, and k'ei as philosophical and practical tenets of the Navajo legal system.

   1. HOZHO

      Hozho' is not defined in reported Navajo court decisions, yet lies at the heart of the Dine worldview. It is "[p]robably the preeminent doctrine in Navajo philosophy and one of the least amenable to English translation...." (25) The word itself is often equated with harmony or balance with one's self, one's immediate and extended family and clans, and the natural world. Yet even that truncates the deeper scope and significance of hozho' and its omnipresence in Navajo thought.

      Part of the problem is attempting to define hozho' in isolation when it must properly be viewed within a broader relational context. "Navajos say that 'life comes from beehaz'aannii,'' because it is the essence of life," writes Robert Yazzie. (26) "The precepts of beehaz'aannii are stated in prayers and ceremonies which tell us of hozho--'the perfect state.'" (27) Dr. Gladys A. Reichard, an influential anthropologist and prolific writer who studied Navajo language and culture in the mid-20th century, similarly described hozho' as a state of perfection to which traditional Navajos strive throughout their lives. (28) "In general," Justice Austin concludes, "hozho' encompasses everything that Navajos consider positive and good; positive characteristics that Navajos believe contribute to living life to the fullest. These positive characteristics include beauty, harmony, goodness, happiness, right social relations, good health, and acquisition of knowledge." (29) His choice of the word "everything" is significant. Properly understood, hozho' is a state of balance, literally and symbolically, with everything in the universe: human relationships, animals and plant life, water, fire and the elements, stars and planets, indeed the entirety of creation. (30)

      Navajo philosophy teaches that everything exists in duality, so that each thing or concept has an opposite quality or other half. Hozhg' is properly understood by reference to its opposite, hochxo', a word loosely translated to mean disharmony, evil, or wrong. Hochxo' is...