DUTY OF FAIRNESS AND HEALING.

• Author: Jayne, JoAnn B.

Ya'at'eeh, Shi Dine Doo Shighei (Greetings my People and Relatives). I am Tabaahi (Water Edge People) clan, born for Kiiy'aa'aanii (Towering House) clan, maternal grandfather Todich'ii'nii (Bitter Water), and paternal grandfather Tabaahi (Water Edge People). I respectfully share K'e (Kinship and Relations) with you in this month of Ya'iishjaastsoh, planting of late crops (July).

What are the duties in mitigating the division in the law and society? As declared in Dine bizaad (Navajo language), "t'oo hol dah hazkeehgooh ha k'ihodoodool (one cannot resolve disputes when in a confused state)." (1) Dine bi beenahaz'aanii (Navajo traditional, Natural, Customary, or Common Law) teaches that "human beings, who have always been imperfect" need discipline and "cannot realistically... set the parameters for their own discipline." (2) The concept of dissension was not heard of in ancient times for the Dine (the People). There are no words for "I am sorry" in our language. Our culture is best known through interactions and experience. If a disagreement occurs it is the Navajo way to "beg leave" of the person who was offended. A strong tradition exists and "[t]here is a custom to be followed... : you approach and ask. The act of approach suggests humility and equality. ... [T]he act of approach and request strengthens ties and relations. The cornerstone of this custom is K'e." (3) K'e is kinship.

Disagreements do not create disobedience to the law under the system of Dine justice. What happens when there is disagreement with the law? What should happen when disagreement occurs? Has dissension bound the court's hands and prevented justice from being served? The heart of Dine justice operates on a much higher scale connected to viewing the world holistically. The concept of dissension is foreign.

This article shows a glimpse of how courts and the practice of law works in Dine society. The role of lawyers to serve the public trust, the jurists' duty of K'e (Kinship; Relations) and Hozho (Beauty, Harmony, Balance), and the inseparable requirements of Dine bi naat'aanii (Leadership) are sacred facets of Dine justice.

The root of Dine justice is Dine fundamental law underscored through leadership. As Dine, we

are the image of our ancestors and we are created in connection with all creation. Upon our creation... we are identified by: Our Dine name, Our clan, Our language, Our life way, Our shadow, Our footprints. Therefore, we were called the Holy Earth-Surface-People [Diyin Nohookaa Dine].... Different thinking, planning, life ways, languages, beliefs, and laws appear among us, But the fundamental laws [Dine bi beehaz'aanii bitsi silei] placed by the Holy People remain unchanged. (4) "Dine bi beehaz'aanii is the foundation of Dine bi nahat'a (providing leadership through developing and administering policies and plans utilizing these laws as guiding principles) and Dine sovereignty." (5)

1. HISTORY

   The Navajo Nation ("Nation") courts are the premier indigenous judicial system in the world. The courts have been called the "flagship of indigenous courts." (6) Today, it is judicial independence that maintains the Nation's sovereignty. American Indian courts look to the Nation's courts as the helm of sovereignty. The Hashkeeji Nahat'a (Judicial Branch) is conscious of the need for independence and the obligation to protect and guard the sovereignty of the Nation. The result of this independence is the courts are capable of conducting duties of restoring harmony, providing teachings on Dine bi beenahaz'aanii, and upholding sovereignty of the Nation. (7) The Dine have determined the Hashkeeji Nahat'a sacred duty and responsibility is to uphold the values and principles of those teachings, to interpret laws, and render judgments. (8)

   On April 1, 2021, the Nation's courts celebrated sixty-two years as an independent judiciary. The Bureau of Indian Affairs, under the United States Department of Interior, created the Navajo Court of Indian Offenses (also known as CFR courts) and brought Anglo Courts to the Nation beginning in 1892. (9) It was the independence of the first Navajo judges in these CFR courts that preserved Dine culture and traditions. In the 1950s, a proposal was introduced in the State of Arizona to take over the Nation's courts using the then newly enacted federal Public Law 280. (10) In response, the Navajo Tribal Council approved a resolution abolishing the Navajo Courts of Indian Offenses and declared the existing courts as courts of the Navajo Tribe. (11) The resolution became effective April 1, 1959. (12) The establishment of its...