NAVAJO TRADITIONAL LAW APPLIED TO NAVAJO COURT RULES ( CIVIL PROCEDURE & EVIDENCE)

1. NAVAJO TRADITIONAL LAW APPLIEDTO NAVAJO COURT RULES (CIVIL PROCEDURE & EVIDENCE) Paul D. Barber

2. Decades ago, Navajo Rules of Civil Procedure and Rules of Evidence were modeled after Federal Rules

3. In 2002 the Navajo Nation Council mandated priority for Navajo Tradition “The Navajo Nation Council further finds that all elements of the government must learn, practice and educate the Diné on the values and principles of these laws; when the judges adjudicate a dispute using these fundamental laws, they should thoroughly explain so that we can all learn; when leaders perform a function using these laws and the symbols of the Diné Life Way, they should teach the public why the function is performed in a certain way or why certain words are used…” Resolution CN-69-02; 1 N.N.C. §201-206

4. More than twelve years of effort – where are we?

5. Diné Bi Beenahaz’áanii DivinBits’áádéé’ Beehaz’áanii – Diné Traditional Law DivinDine’éBitsáádééBeehaz’áanii – Diné Customary Law NahasdzáándóóYádilhilBits’áádéé’ Beehaz’áanii– Diné Natural Law DivinNohookááDiné Bi Beehaz’áanii – Diné Common Law

6. Beehaz’áanii In 1990, the Navajo Nation Supreme Court explained the legal aspects and legal understanding of the word bee haz’áanii in Bennett v. Navajo Board of Election Supervisors: “The Navajo word for “law” is beehaz’aanii. While we hear that word popularly used in the sense of laws enacted by the Navajo Nation Council…it 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.” Austin at 40 Navajo Courts and Navajo Common Law

7. Navajo Traditional Procedure – “nahaat’a” “Talking things out.”

8. “The Navajo concept of naahat’á encompasses the process of talking things out and planning or coming to a conclusion, trying to encompass the duality of both good things and bad things, hózhó and haskee’jii’. It includes the opportunity and faith that people should hear everything, that people are capable of examining the puzzles and considering the information that people normally talk about as part of the process of coming up with a resolution.” Affidavit of Robert Yazzie

9. “Traditionally, the Navajo process relied on people to have a good sense of things, how to proceed, how to listen to the urgings and the respectful differences of opinions of the various parties. This helps them arrive [at] a fair solution. Navajo tradition and practice adheres to the idea that people (given transparency and full information and proceeding carefully) will try to come up with a solution that bringshózhó.” Affidavit of Robert Yazzie

10. Navajo Hózhó v. Rambo style litigation v. Nályééh

11. From the preceding discussion we can say that hózhó refers to the positive or idealenvironment. It is beauty, harmony, good, happiness, and everything that is positive, and it refers to an environment which is all-inclusive.” Witherspoon at 24 Language and Art in the Navajo Universe

12. Goal Is to Restore Hózhó The Navajo Nation courts use the terms hózhóand harmony interchangeably, even though they have not attempted to define hózhó. While utilizing the Navajo jurisprudence model, the Navajo Nation courts have stated that the goal of Navajo dispute resolution, which would be both in the adversarial (litigation ) and nonadversarial (peacemaking) contexts, is to restore disputants to harmony with each other and their communities.” Austin at 66 Navajo Courts and Navajo Common Law

13. Some suggestions to empower Navajo Court Judges:

14. Limit motions to dismiss and technical defenses

15. Open discovery vs. Hide the ball

16. “Based on Navajo traditional concepts of justice and discussing information on the merits, courts should be careful about dismissing cases on technicalities or on grounds that deny people the opportunity to discuss their issues either among themselves, in front of the court, or in front of the jury. Not allowing full presentation of evidence on the merits offends traditional concepts of talking things out and reaching a state of hózhó.” Affidavit of Robert Yazzie

17. Reasonable notice vs. Strict disclosure rules

18. Open evidence vs. Picky objections

19. “In a formalized court setting, one of the important factors or bits of important information that Anglo law might deny to the jury in the talking-out process is the amount of assets in the form of liability insurance available to the people who caused the injury. Even though Rule 11 of the Navajo Rules of Evidence prohibits insurance as evidence of liability, the Rule does not prohibit consideration of insurance for the purposes of damages or the ability of one side to pay naalyeeh.” Affidavit of Robert Yazzie