Navajo Supreme Court Case at Yale Law School Yields Lessons in Indigenous Justice

Gale Courey Toensing
11/22/11

NEW HAVEN, Conn. – Three justices from the Navajo Supreme Court traveled to Yale Law School in November to hear oral arguments in front of an audience of law school students and scholars in a complex case involving the ownership of Indian land held in trust by the federal government.

The Court included Chief Justice Herbert Yazzie, Associate Justice Eleanor Shirley, and Associate Justice Wilson Yellowhair. The justices heard arguments November 14 in the appeal of the case Navajo Nation v. RJN Construction Management, Inc., Robert J. Nelson and the Home for Women and Children.

The case revolves around the ownership of the Shiprock Home for Women and Children (HWC). The Navajo Nation granted a business site leasehold to the nonprofit HWC to build the shelter using grant funds from the Nation and then to operate the shelter. When the grants ran out, the responsibility to complete the half-completed project was transferred to the Navajo Nation. The lease agreement was amended to state that the Nation, not HWC, would own the finished shelter. The Nation paid RJN construction to complete the project but RJN failed to do so and with support from the HWC tried to block the Nation from using another construction company for the work, according to the court documents. So the Nation filed a trespass action in Shiprock district court against the HWC and RJN last year. The court found that the Nation owns the land as a matter of law and issued a permanent injunction prohibiting RJN from entering the land or interfering with the Nation’s completion of the project.

The HWC and RJN appealed the injunction to the Navajo Supreme Court. The appeal raises numerous questions around the interpretation of “ownership” of Indian trust land and the structures built on it through a long term lease; the interest of local communities in land use decisions; the differences between a tribal business site leasehold and a “commercial lessor” as that term is generally used in the United States, and whether the differences, if any, require distinct treatment, according to the court documents. Because of the nature of trust land, the intersecting issues of ownership of title, actual ownership, ownership of structures, and possessory rights become complex. The Navajo Nation Office of Legislative Counsel submitted an amicus brief on these issues.

This was the Navajo Supreme Court’s first visit to Yale Law School. About 250 Law School students, faculty members and visiting scholars filled the Sterling Law Building for the late afternoon event. The Navajo Supreme Court from time to time travels to various law schools around the nation as a means of educating law students and the public about tribal justice systems. In 2007, Dartmouth College and Vermont Law School hosted the Navajo Supreme Court at the Dartmouth’s Tuck School of Business in a case involving the Navajo Court’s jurisdiction over an off-reservation liquor store that acted negligently in selling liquor to a tribal member whose intoxication led to a fatal accident on the Navajo Reservation.

Visiting Professor of Law Gerald Torres, who introduced the justices, said that Yale Law School was “honored” by their visit. He pointed out that tribal justice and judicial systems are largely ignored in law schools across the country. “We think of ourselves as being in the federal system and we think of the federal government and the states, but of course there’s an extremely important third element that we should never forget about and that’s the tribal justice systems that exist in the United States.” The tribal justices systems form “a vital element of the country’s tripartite federal system” and are essential in law education, he said. “My view is we could teach the entire law school curriculum by exploring the ways in which justice as it is related to Native America has evolved.” Torres holds the Bryant Smith Chair in Law at the University of Texas School of Law. He served as counsel to U.S. Attorney General Janet Reno on issues of environmental law and policy and on Indian affairs from 1993 to 1995. He is a leading figure in critical race theory and co-authored with Lani Guinier The Miner's Canary: Enlisting Race, Resisting Power, Transforming Democracy. (Guinier, an African American Yale Law School graduate, drew the spotlight in 1993 when President Bill Clinton nominated her to head the Civil Rights Division of the Department of Justice, then withdrew her nomination after political opposition.)

The  Navajo Nation – Dine Bikeyah or Navajoland – spreads across more than 27,000 square miles in Utah, Arizona, and New Mexico, an area larger than 10 of the 50 U.S. states. Chief Justice Yazzie introduced himself as a member of the community of Dennehotso, Táb??hí clan, born for Kin?ichíi'nii, Tó'áhaní (maternal grandparents) and Tódích'íi'nii (paternal grandparents). Associate Justice Shirley said she is from the Nazlini community. She is Táchii’nii (Red Running Into Water Clan) born for the Ma’iideeshgiizhnii (Coyote Pass – Jemez Clan), her maternal grandfather’s clan is Tábaahi (Water Edge Clan) and her paternal grandfather’s clan is Tódich’iinii (Bitter Water Clan).

After the oral arguments, there was a question and answer period with the justices. Much of the discussion focused on the differences between Navajo law and U.S. law, including the Nation’s use of customary indigenous law, and the crucial distinction between U.S. law, which is punitive, and Navajo law, which seeks restorative justice. Yazzie emphasized that the Nation’s courts “are not a subsidiary of the federal court. The Nation is a sovereign. It has its own laws as enacted by its legislature and as taught from generation to generation, the unwritten law, if you will.” He debunked the assumption that the Navajo court is an “instrument” of the federal government’s policies. “It is not,” he said, and neither is the Navajo Nation subject to all the laws enacted by the federal government. The difficulty in the nation-to-nation relationship is caused by the unilateral actions of the federal government when it enacts laws and policies that affect the 500-plus Indian nations, because there is never “actual discussion” among the parties, Yazzie said.

“Back in the day, I can remember my grandparents wondering how it is that this (U.S.) government that dictates is so learned in matters of technology and so sophisticated in government, but how it can do so without being humane. That always caught my attention,” Yazzie said. The questions is always how the 500-plus indigenous nations will fit into the environment in America in the future, Yazzie said, “and how we have to take a principled stand and express to state government, to federal government that it behooves them to recognize the Indian nations. History ought to teach that if you continue to act unilaterally against everybody you meet, you create for yourself not relationships, but really dominance and control and you want to keep that, and that’s not human,” Yazzie said.

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