Navajo Nation, a delicate balance between old and new 4-6-07

by Felicia Fonseca
Albuquerque, New Mexico (AP)
Retired lawyer Jim Fitting has won some cases on the Navajo Nation based on a tribal law that he admits he doesn't completely understand. Like other non-Navajos, Fitting said he often struggles to make sense of the Dine Fundamental Law - based on customary, traditional, natural and common law. Knowledge of it lies mainly with Navajo medicine men and elders.
While it's part of the cultural upbringing of Navajo people, "it's also something that is extremely hard for a non-Navajo to get a grasp of," said Fitting, now a consultant to businesses that want to operate on the Navajo Nation.

In a society that strives to uphold the traditions of its people, judges often interweave the fundamental law with federal or state statutes that are not always consistent with Navajo culture. Some have praised the practice as a unique way to deal with modern problems such as methamphetamine and gangs; others question why Navajos, who have resisted European assaults on their traditional laws for centuries, recognize laws created outside their culture at all.

"The Western idea is foreign to Navajo, so why should we say a foreign idea should have a higher standing than what's traditional all along," said Leonard Tsosie, a Navajo council delegate.

The fundamental laws are what define the Navajo people. The Holy People, or deities, who handed down the laws, went through certain experiences, developing virtues and values that teach Navajo people how to live as decent human beings, said Navajo Supreme Court Justice Herb Yazzie.

"In our society, it is best that you live by those traditional laws and those virtues and those values because that is not only what defines you but keeps you in harmony with your place in the world, and therefore, it should always come first," Yazzie said. "Now, there's a tendency to think in terms of hierarchy, and that's unfortunate when you talk about fundamental law and tradition and culture."

The law has gained increased attention since the Navajo Nation Council codified it in 2002 over concern that the knowledge of the law is fading, especially among young people.

Tsosie cited fundamental law earlier this year in arguing that he should be allowed to serve on the tribal council and the New Mexico state Legislature at the same time. Navajos have the right to freely choose their leaders under fundamental law, but the tribe's election code bars delegates from holding elected state or federal offices. The Navajo Supreme Court ruled against Tsosie.

Fundamental law also has been brought into the debate over whether a coal-fired power plant should be built on Navajo land. Navajos have a sacred obligation under the natural law to protect the land and the air - which opponents say wouldn't be served well by the power plant.

Nearby in Nageezi, community members are objecting to a plan to build over the foundation of the chapter house that burned down about a year ago. They say that under fundamental law, that would promote disharmony.

An Arizona-based nonprofit law firm, DNA-People's Legal Services, also is looking at hundreds of Navajo court opinions dating back to 1969 to find out how the fundamental law has influenced judges' rulings.

"Once we take a look at that, we can follow how the courts have decided certain cases," said executive director Levon Henry, who hopes to have the project complete this spring.

The tribal council provided no direction to judges in how to apply the law. Rather, the amendment to the Navajo Nation Code serves as an acknowledgment of the laws that tribal leaders seek to keep alive, Yazzie said.

Medicine men and elders often are called in to court to testify on the fundamental law in front of judges who are required to have some practical knowledge of the law and speak fluent Navajo.

"Judges, in my experience, take fundamental law extremely seriously and are very, very interested in what is the Navajo way of resolving a problem and will grill you whether you're Anglo, Navajo or whatever on the traditional concepts of your case," said David Jordan, a non-Navajo lawyer practicing on the Navajo Nation.

Yet the fundamental law is being scrutinized mainly because it's vague and often conflicts with Western law, said Justin Jones, who teaches the fundamental law to the Navajo Bar Association. Certain distinctions in the law need to be made and "developed to a certain degree just so there's clarity," he said.

Tsosie agrees, and said while talk of refining the code hasn't come up, he likely will spark the debate among delegates.

"The law as originally conceived is a good idea, but I think we need to begin to look at it as to specific areas of law," he said.

Fitting, a former assistant attorney general for the Navajo Nation Department of Justice's Economic and Community Development Unit, said the fundamental law is almost impossible to explain to businesses.

"They look around and sort of say, 'What?"' he said.
But he said he takes the approach that lies at the heart of the fundamental law.

"What I found here is that if I followed the principles of equity and just trying to do what any reasonable human being would do, I seem to get by OK," he said.