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The Hard Realities of Advocacy

by joseph jordan '06

"What sets the navajo legal system dramatically apart from that of the US is its willingness to allow culture, tradition, and the Navajo belief system to pervade the way laws are made and disputes are decided—a willingness that was rather refreshing and in contrast to much of the contentious litigation under our system."

I know it's possible to be an effective attorney and a decent person; I wouldn’t even have contemplated joining the profession if I believed otherwise. But as I finish my first year at BC Law, I still have concerns: How will I act in the real world? Will I be able to be an ethical lawyer and maintain my integrity, or will I get trampled on by less principled attorneys and be forced to change my behavior merely to compete?

To help answer this question, I decided to see the American legal system through the lens of a unique iteration of it—that of the Navajo Nation. With five other BC Law students, I spent my week-long February break as an extern at the Navajo Nation Supreme Court in Window Rock, Arizona.

Tucked into three aging trailers adjacent to a geological marvel known as Window Rock, the Navajo Nation Supreme Court is the final appellate court of the Navajo Nation, the largest Indian tribe in the United States at about 300,000 members. The Navajo reservation spans territory about the size of West Virginia, traversing Arizona, New Mexico, and Utah state lines. Much of the territory is remote, and as a result, the Navajo, or Diné, people face significant economic disadvantages, with more than half of those living on the reservation unemployed and managing to survive under the poverty level. Despite these hurdles, the people retain a vibrant, long-standing culture—and they work hard to ensure it continues to define their society.

What sets the Navajo legal system dramatically apart from that of the US, at least from my observations, is its willingness to allow culture, tradition, and the Navajo belief system to pervade the way laws are made and disputes are decided—a willingness that was rather refreshing and, given the Navajo emphasis on community-building, in sharp contrast to much of the extremely contentious litigation under our system.

At first glance, the Navajo government seems strikingly similar to that of the US: It’s also divided into three branches: executive, led by a president and vice president; legislative, consisting of the eighty-eight-member popularly elected Navajo Nation Council; and judicial, comprising seven district courts, seven family courts, seven peacemaker courts, and the Supreme Court.

At the heart of this system, though, is a different definition of “law.” Long before the US began to exert its influence in the mid-1800s, characterizing the tribe as a “domestic dependent” nation under the federal government (a classification that means the Nation is separate from the US yet still somewhat controlled by federal law), the Navajo people ordered their society around the fundamental beliefs and traditions their elders used to decide disputes. Unwritten yet collectively shared, these “laws” not only incorporated the entire Navajo history and belief system, but also reflected the recognition that all tribal members, even those who disrupted the community, were valued. Elders thus settled disputes with the primary goal of healing and rebuilding relationships between people, rather than simply issuing black-and-white decisions.

The Navajo Nation Council formally recognized this history and its current relevance a few years ago when it passed the Fundamental Laws of the Diné, legislation that declared Navajo fundamental law to be the supreme law of Navajo society. Since most of the fundamental principles on which the Navajo belief system is based are not codified, this legislation generated confusion regarding its relation to written statutes, but it did make clear that Navajo concepts are to be a vital part of any legal debate. Navajo courts thus regularly look to custom and these principles in deciding cases.

I saw a very basic way Navajo culture influences its legal proceedings during one afternoon we spent observing criminal sentencing proceedings in Navajo district court. Instead of simply processing the defendants in an assembly line-like manner as I’ve seen in our system, the judge listened to their concerns and ensured that the defendants realized their sentences carried community ramifications by giving them the ability, in some sense, to reconnect with the rest of the tribe.

The Navajo Peacemaker courts are a more vivid example, as the proceedings enable parties to come together to resolve their disputes in a more traditional, cooperative manner than American courts would allow. Guided by rules like “no intimidation of one another” and, perhaps more tellingly, “no lawyers to practice in the session,” Peacemaker proceedings function somewhat like mediation but with an overall focus on balance, peace, and harmony. The presiding elder, selected for the respect he has earned and his knowledge of Navajo beliefs, is able to rebuke the tribal members where appropriate and fashion a solution best for the parties and the community. The result is dispute resolution that heals wounds rather than further entrenching, by virtue of an adversarial system, parties’ dislike of one another.
Another interesting manifestation of Navajo priorities in their legal system is the fact that Navajo judges serving in the more formal courts aren’t required to have law degrees, so long as they’re considered schooled in Navajo beliefs and tradition. While there’s somewhat of a growing preference for judges with legal degrees (both of the sitting Supreme Court justices, for example, have law degrees), the fact that it’s more important for judges to know Navajo culture reveals there’s something about that culture that isn’t readily available in law school yet still considered necessary for just adjudication. I’d characterize this as a canon of ethics, an undercurrent of morality, and a focus on restorative justice that are less prominent in our legal system.

Perhaps because the Navajo Nation is smaller, not to mention more homogeneous, than the US, it is easier for their culture, and thus their system of morality, to play a role in lawmaking and adjudication because there’s less conflict as to what that culture is. Sure, our culture of democracy and the intentions of the framers sometimes inform our discussion of law, but that culture certainly doesn’t provide a moral compass. The Navajo system is adversarial for the most part, so it shares some problems with our system, but culture and morality still permeate that adversarial framework—demonstrating it is possible for an adversarial system to function properly where morality influences outcomes.

I left my week at the court inspired. The Navajo don’t have all the answers, and some of their methods wouldn’t work when applied on a larger scale, but I at least have more hope about deepening morality in our system. Once we as lawyers start asking the right questions about our system more frequently, some of that change occur—and I will be able to focus on being a strong advocate without worrying whether zealousness also means compromising my morality.