by Nina Chester
Each Tribal Nation has experienced a unique introduction to settler society. American jurisprudence is a foreign judicial system that was imposed upon Tribal Nations by the United States federal government through regulations promulgated by the Bureau of Indian Affairs.[1] They were called Courts of Indian Offenses or Code of Federal Regulations Courts (CIO/CFR courts).[2] The initial purpose of the CIO/CFR courts was to prosecute Indians for practicing traditional Native American ceremonies, versus the compliant acceptance of Catholicism.[3] They were installed throughout Indian Country as boiler-plate court systems that operated in the written and spoken foreign English language.[4]Non-Indigenous settlers perceived Indian Nations to be without lawful order, “in response to such a perceived void the Secretary of the Interior relied upon his general authority over Indian affairs, not an express statutory authorization, to establish these courts.”[5] Despite the lack of Congressional initiation, the Courts of Indian Offenses and Code of Federal Regulations Courts remain.
Retrospectively, the CIO/CFR courts served as the foundational step towards establishing and operating a tribal court. Where tribes have had the capacity to operate a court within their sovereign governments, they have had more time to adapt their court systems to accommodate their cultures. Some Tribes continue to operate under ‘boiler-plate’ CIO/CFR courts. Where tribes currently do not have the capacity to operate their own tribal courts, the BIA operates CFR Courts for Tribes to use.[6]
To illustrate the origin and importance of tribal systems of social order, it is helpful to understand that before European, Spanish, French, and non-Indigenous settlement in North America, this vast piece of land existed in its natural state, largely undisturbed by development. For successful human survival on such wild terrain, intimate knowledge of plants, animals, and water resources were required; as was involvement with a community, a tribe. Each Tribal Nation accomplished societal order through customs, traditions, societies, and clanship systems bestowed upon them by their Deities, which ensured the emotional, physical, social, and psychological well-being and survival of the Tribe. Creation stories served as the basis for orientating Tribal Members within the world they were born into. The creation stories developed relationships between the individual and plants, insects, stones, mountains, animals, human beings, wind, water, fire, Earth, Deities, everything, and everyone. The individual learned that everything on Earth is sentient and capable of relationships. The individual also learned that there is a natural order to the way Mother Nature conducts her business of life, death, harvest, and hardship.[7]
For example, the word for balance or “the perfect state”[8] in Navajo is hozho. To be in harmony with Mother Nature one must seek to live in hozho. A Navajo-to-English translation of this view of the natural order is offered by former Navajo Nation Supreme Court Chief Justice Robert Yazzie, “The Navajo word for ‘law’ is beehaz’aanii.… Navajos believe that the Holy People ‘put it there for us from the beginning’ for better thinking, planning and guidance…. Through these prayers and ceremonies we are taught what ought to be and what ought not to be.”[9] Together, a tribal human society, the natural world, and the spiritual laws conferred upon a Tribe by their Deities, form what is contemporarily referred to as customary law. It is an expression of the rights and wrongs of conduct in relationship with other human beings, family members, affiliates, the natural world, and the Deities.
In 1832, the Supreme Court of the United States had no awareness of Tribal customary laws. Nevertheless, the Court supported the sovereignty of tribes over encroachment by state governments in Wocester v. Georgia, when it stated:
The Cherokee nation, … is a distinct community, occupying its own territory, … in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress.[10]
In 1896, the Court supported the sovereignty of tribes over encroachment by the federal government in Talton v. Mayes when it reasoned that Indian Nations are sovereign because the United States has entered into treaties with them, “The very term ‘nation,’ … means a ‘people distinct from others.’ The constitution, by declaring treaties … to be the supreme law of the land, has adopted and sanctioned … treaties with the Indian nations, and … admits their rank among those powers who are capable of making treaties.”[11] Wocester and Talton affirmed the sovereignty of federally-recognized Tribal Nations for all civil judicial matters. However, the judicial powers of Indian Nations to prosecute their own Tribal members, Non-member American Indians, and Non-Indigenous people in criminal matters has become very limited.
Within the timeline of federal Indian policy, the Court has “recognized that the tribes remain quasi-sovereign nations which, by government structure, culture, and source of sovereignty are in many ways foreign to the constitutional institutions of the federal and state governments.”[12] Through use of the Court’s interpretation of cultural differences, the concept of quasi-sovereignty has been one of many tools used by the Court to attempt to deteriorate Tribal sovereignty. Other “tools” include the Major Crimes Act,[13] the Indian Reorganization Act,[14] and the Indian Civil Rights Act,[15] among others.
Given the historic mistreatment of Tribal Nations, Michael Taylor argues that, “[w]ithout an Indian judiciary, the tribes will always be dependent on foreign, sometimes hostile, state or federal judges to decide crucial questions that arise within the tribal territory.”[16] Therefore, a middle route is necessary. The Courts of Indian Offenses and Code of Federal Regulations Courts need to be fully embraced and imbued with cultural elements that reflect the belief systems of the Tribal Nations they serve. In this manner, they support the Tribal Nation internally and externally.
In order for a judiciary to be effective, it must match the values of a society. For Tribal Nations, customary law carries a weight equivalent to that of American Jurisprudence. Generally, individual sovereignty and an inherent responsibility or duty to one’s relations are foundational concepts of an indigenous worldview. When a dispute arises, a conversation involving families, clans, leaders, elders, and/or a spiritual component occurs about how the parties would prefer to proceed forward. This, generally and broadly speaking, is the judicial system. Everyone is an important piece in the process and everyone resolves the problem together.
Former Justice Yazzie describes the difference between the American adversarial approach to a judicial system and the traditional Navajo approach to a justice system, as “vertical justice”[17] vs. “horizontal justice.”[18] He shares that according to Navajo “religious leaders and elders … man-made law is not true ‘law.’ Law comes from the Holy People who gave the Navajo people the ceremonies, songs, prayers, and teachings to know it.”[19] In his statement, Former Justice Yazzie speaks to an inherent Navajo understanding of the spiritual essence of all that is and he stresses that human beings are but one piece to the universe. For contrast, he adds, “while Anglo law is concerned with social control by humans, Navajo law comes from creation.”[20] A “‘vertical’ system of justice is one which relies upon hierarchies and power[,]”[21] has a “preoccupation with the truth[,]”[22] and it “looks back in time to find out what happened and assess punishment for it.”[23] Vertical justice “does not try to find out what went wrong in order to restore the mind, physical well-being, the spirit, and emotional stability. Conversely, Horizontal justice, in the form of Navajo justice, has a “focus on healing, integration with the group, and the end goal of nourishing ongoing relationships with the immediate and extended family, relatives, neighbors and community.”[24] The fundamental purpose of “Navajo justice is problem solving. Navajo legal thinking requires a careful examination of each aspect of a given problem to reach conclusions about how to best address it.”[25]
In 1982, the Navajo Nation established the Navajo Peacemaker Court, which incorporated traditional horizontal justice into the vertical CIO/CFR court system that was previously established. The Navajo Peacemaker Court gives Navajo judges and those seeking the services of the Navajo court an opportunity to reach a resolution by “talking things out.”[26] Peacemaking is similar to the option of mediation in American jurisprudence, but with spiritual and cultural elements distinct to the Navajo culture and society.[27] Another method of horizontal justice that is available for incorporation and similar to peacemaking is the talking circle, which also allows disputants the opportunity to heal through talking things out, making things right, and healing relationships.
Overall, Tribal Nations require different methods to achieve their own definitions of justice. Therefore, it is natural and necessary for Tribal Nations to reintroduce Tribally-developed systems of justice for proper and satisfactory judicial outcomes for Indian Country.
[1] Gloria Valencia-Weber, Tribal Courts: Customs and Innovative Law, 24 N.M. L. Rev. 225, 235 (1994).
[2] Id.
[3] Native Voices, Timeline Defining Rights and Responsibilities, National Library of Medicine (last visited Mar. 14, 2022), https://www.nlm.nih.gov/nativevoices/timeline/364.html.
[4] Valencia-Weber, supra note 1, at 236.
[5] Id. at 235.
[6] Bureau of Indian Affairs, Court of Indian Offenses, U.S. Department of the Interior (last visited Mar. 14, 2022), https://www.bia.gov/CFRCourts.
[7] See Ella Cara Deloria, Waterlily (University of Nebraska Press: Lincoln and London, 1988).
[8] Robert Yazzie, Life Comes from It: Navajo Justice Concepts, 24 N.M. L. Rev. 175, 175 (1994).
[9] Id.
[10] Wocester v. Georgia, 31 U.S. 515, 520 (1832).
[11] Talton v. Mayes, 163 U.S. 376, 383-84 (1896).
[12] Santa Clara Pueblo v. Martinez, 436 U.S. 49, 1684 (1978).
[13] Major Crimes Act of 1885, 18 U.S.C. § 1153.
[14] Indian Reorganization Act of 1934, 25 U.S.C. § 5123.
[15] Indian Civil Rights Act of 1968, 18 U.S.C. §§ 1301–1304.
[16] Michael Taylor, Modern Practice in Indian Courts, 10 U. Puget Sound L. Rev. 231, 274 (1987).
[17] Yazzie, supra note 8, at 177-180.
[18] Id. at 180-187.
[19] Id. at 176.
[20] Id. at 176.
[21] Id. at 177.
[22] Id. at 179.
[23] Id. at 179.
[24] Id. at 182.
[25] Id. at 176.
[26] Id. at 186.
[27] Id. at 187.
Tribal Law Journal 