Navajo court strike down limits on use of Dine law

By Felicia Fonseca
Window Rock, Arizona (AP) June 2010

The Navajo Nation Supreme Court has struck down an attempt by the Tribal Council to limit the courts’ use of a centuries-old set of traditional tribal laws in deciding cases.

Navajos have lived by the laws, known as “Dine Fundamental Law,” since time immemorial and no human being can change that, Chief Justice Herb Yazzie said.

The council voted earlier this year to restrict the use of the laws to peacemaking courts, over concerns that they had been misused and abused within the court system. Navajo President Joe Shirley Jr. vetoed the measure, but the council voted to override it.

The justices declared the measure invalid May 28 in Window Rock as part of a ruling in a case involving Shirley and the council, sitting with the sacred rock formation for which the tribal capital is named behind them. Interspersed throughout that and another ruling announced Friday were references to traditional beliefs, such as k’e, respect for oneself and others.

“They are not man-made law and may not be ‘enacted’ by individuals or entities or the Navajo Nation Council,” the three justices, Yazzie, Eleanor Shirley and Louise Grant, wrote. “They may simply be acknowledged by our man-made laws.”

The council voted to codify the fundamental law in 2002 over concern the knowledge of it was fading among the younger generation. The fundamental law has been referenced in thousands of Navajo court cases, and elders and medicine men frequently are called in to court hearings to testify on it.

Council Delegate Raymond Joe, who sponsored the measure to amend fundamental law, acknowledged the council’s action has rubbed some Navajos the wrong way. But he said the fundamental law as codified never was intended to replace statutory law.

Delegate Johnny Naize said it shouldn’t be included as part of the Navajo government at all.

“Fundamental law belongs in the hogan,” a traditional Navajo home, he said. “It’s the responsibility of us, parents and grandparents, to teach that to our kids.”

After the council amended it earlier this year, the high court justices anticipated a potential conflict in two cases before them in which attorneys brought up issues of fundamental law. The attorneys were asked to weigh in on whether the change was valid and would impact the cases.

Some lawmakers contended the legislation the council enacts isn’t subject to judicial review. But the high court strongly disagreed, saying that judicial review is an essential component in a three-branch government, particularly when a measure seeks to limit or control the judicial process.

The justices said the amendment to fundamental law was highly ambiguous, also taking note that some council delegates have been less than pleased with a number of decisions citing fundamental law that were counter to their interests. The justices suggested amending the law was in retaliation for those decisions.

“The council may not encroach upon the independence of the judicial branch,” the justices wrote. “While a complete and total separation of powers is not possible, encroachment by one branch into the essential powers of another for any reason is impermissible.”

The recognition of separate Navajo leaders is in itself a traditional principle, Yazzie said in retelling a Navajo story in which four different groups nominated leaders but couldn’t agree on just one. The leaders were sent in each of the four cardinal directions and each returned with items crucial to sustaining life.

“The decision was made that they must all be leaders,” Yazzie said. “There cannot be one single superior leader. They must all work together. These are the principles that were set forth to us by the Holy People.”

Joe Shirley Jr. said the high court’s ruling proves that Navajos have a right to their sacred way of life, their culture and language. “We must do everything we can to preserve what is left of it and not advocate for its extinction,” he said.