Using the past

Phillip Burnham
1/26/05

Western law is full of commandments and amendments, writs and injunctions,
subpoenas, statutes, edicts and decrees. But Lorene Ferguson knows
something more: The best part of the law isn't always written down.

Ferguson, no legal novice herself, holds a J.D. from the University of New
Mexico. She worked as a tribal attorney and district court judge for nearly
20 years. Today, she is an associate judge, and acting chief justice, of
the Navajo Supreme Court. Her law is a blending of traditions, some of it,
until recently, never put down on paper.

"When you look back at it, a large part of what you apply is based on those
things you learn as a child," said Ferguson, recalling a traditional
upbringing her grandmothers gave her on the Navajo Reservation near Fort
Defiance, Ariz. Ideas about fairness and justice come from the home, she
said, learned from family role models. In the schools, she noted, "I don't
think you can teach compassion and restraint."

While in law school at UNM, Ferguson struggled with Western legal concepts
at first. But once she began to look at case law more closely, she saw
principles of fairness similar to those from her own upbringing. It wasn't
until Ferguson went back to Navajo country in the 1980s that she was asked
to put Western law to work in a place it had been introduced barely 25
years before.

"When you're trained to write and use authorities, and all of a sudden they
pulled some customary law out of the blue, it was really hard for me,"
Ferguson recalled, referring to justices practicing Navajo common law at
the time. She knew customary law, having been raised in the Navajo way, but
her formal education had blunted the memory. As she gained more experience,
Ferguson came to see how the two systems could work together.

The Navajo justice system is unique in Indian country for its blending of
non-Indian and tribal traditions. The tribal code is patterned after
Arizona law, and courts are organized on the Western model. But judges at
both the district and supreme court levels must be enrolled tribal members.
They must speak Navajo and English. And they need a good grasp of local
customary law, since, as Ferguson put it, speaking from her office in
Window Rock, Ariz., "a large part of what we do are things handed down by
tradition."

Key to that tradition, Ferguson said, is nalyeeh, or "making a person
whole." When one person does harm to another, the Navajo bring offender and
victim together to make restitution. They discuss the ill effects of the
act and possible ways to right it, whether by money, material goods, or
"even a simple apology." The objective is to talk through the problem and
reach a mutual agreement without resorting to punishment. The concept
arises in just about all torts and contract cases, said Ferguson, even with
attorneys from off-reservation.

Since 2000, the Navajo criminal code requires tribal courts to employ
traditional resolution methods for scores of offenses. "Law enforcement on
the reservation doesn't like that because they like to see people put in
jail," said Ferguson. "But the problem is that we don't have the jails."
Enforcing mandatory jail time for a DWI second offense, she said, is
difficult without the space to hold offenders. Even Department of Justice
funds earmarked for public safety follow a philosophy of incarceration,
Ferguson explained, one that competes with the traditional method of
resolution known as "peacemaking."

Traditionally, every Navajo community had a peacemaker. Nalyeeh was central
to their work. "A large part of it had to do with [people] talking out
their problem and entering into some sort of an agreement," said Ferguson.
"And people were held to whatever they agreed to." After the tribal court
system was established in 1959, peacemaking receded in importance until the
1980s, when an innovative court revival meshed traditional and non-Indian
methods of justice.

People can use peacemaking to bypass the courts or even use the two in
tandem. For a pending divorce, Ferguson explained, a judge might send an
issue to the peacemakers - assistance over custody or separation of
marriage property - so that parties can reach an agreement the court might
adopt. Or the parties might approach the peacemaker, agree to a solution,
then submit their own divorce proposal to the judge. Peacemakers, of whom
there are about 250 on the reservation, are chosen by their communities.

Peacemakers are a far cry from judges in non-Indian courts, said Carole
Goldberg, professor of Law and director of the Joint Degree Program in Law
and American Indian Studies at UCLA. Judges are supposed to be impartial
umpires, with strong rules to disqualify them if they aren't. In most
tribal settings, however, peacemakers "are selected because they're known
to and respected by the parties," Goldberg said. "There very well may be
some clan or kinship or other connections that enhance the role of the
peacemaker."

Goldberg compared peacemakers to mediators in the non-Indian world, noting,
however, that the latter still remain detached from all parties and don't
articulate community norms as peacemakers do.

"The non-Indian system basically makes the assumption that if you commit a
crime it's some kind of moral failing, and you need to be punished," said
Goldberg, who has written widely on federal Indian law and tribal courts.
"Most tribal cultures take the view that if you've engaged in disruptive
behavior in the community and caused some harm, then you are in a state of
ill health or disharmony. You need to be returned to a state of harmony and
good health," she added, an important objective of peacemaking, which is
also practiced by tribes in the Pacific Northwest.

Even with healthy traditions in tow, the Navajo courts are under funded.
Only about 5 percent of the Navajo general fund is appropriated to the
judiciary. With more money, Ferguson said, they could get two more judges
at the district court level, but "we're just not keeping up with the
population," whose median age in 2000 was 22.5 years. The Navajo have 17
judges at the district and supreme court levels while the courts hear more
than 90,000 cases a year.

"In order to survive as a people, you have to learn to live as a group, and
you learn about fairness and trying to solve problems," said Ferguson. And
not every solution can be found in a book.

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