At a recent annual conference of the Navajo Nation Bar Association, the Navajo Supreme Court held an oral argument. I argued for the Navajo Nation’s government. The case was an appeal from a criminal conviction by the Shiprock District Court. A judge had been convicted after a bench trial of abuse of office under the Navajo Criminal Code, and he argued on appeal that the trial court erred in accepting certain testimonial evidence.
For those versed in appeals in state and federal courts, the scene would have been familiar. Three justices of the Navajo Supreme Court heard legal arguments first from the appellant and then the appellee, then a rebuttal from the appellant. The main discussion concerned what level of deference the court should give to the trial court’s ruling, whether the evidence presented at trial was sufficient, and whether the facts as found met the elements defined in the statutory offense. At the end, the court took the case under advisement and stated it would issue a written opinion shortly. (The court did issue its opinion in Navajo Nation v. Tso on October 25, 2016, affirming the conviction. The court denied Judge Tso’s motion for reconsideration on January 27, 2017.)
Differences with State and Federal Courts
However, despite the similarities, the argument was also quite different from a state or federal argument. First, the justices began the hearing by introducing themselves in Navajo and each identifying their four Navajo clans, as is customary in Navajo society. Further, the justices had the counsel and appellant introduce themselves and identify their clans (for white non-Indians like myself, there are Navajo words for certain European peoples, or the general term for white people, bilagàana). The appellant’s counsel, a Navajo tribal citizen, spoke in Navajo several times at the hearing, as did the justices. Also, both counsel and the justices discussed unique Navajo legal principles relevant to the case. One question presented by the justices was whether the judge’s status as a naat’àannii, or Navajo leader, should affect how the offense of abuse of office was proven. Further, the lawyers and the justices discussed whether the Navajo concept of jiní, loosely translated as “it was told to me,” should inform whether the trial court improperly let in unreliable hearsay testimony.
So it is for advocates in the Navajo Nation courts. Attorneys appearing before the Navajo Nation’s tribunals must understand general legal principles of American law, such as standard rules of evidence and criminal and civil procedure, but they must also be conversant in Navajo legal principles. Although structurally consistent with state and federal courts—with trial courts and administrative tribunals holding trials and issuing judgments, and the supreme court ruling on appeals from those tribunals—the substantive law of the Navajo Nation reflects the unique principles of Navajo custom, tradition, and teachings.
Tribal nations can do this because of their inherent sovereignty. Through treaties, statutes, and case law, all three branches of the federal government recognize and affirm that tribes are independent governments with authority separate from the states and the United States. With this comes what I call “jurisprudential sovereignty,” or the right of tribal legislatures and courts to apply unique legal principles that reflect the values and public policy of that society.
The level to which a given tribe’s judiciary applies those principles varies significantly. There are over 500 tribal nations in the United States, and they vary in size, from a few hundred citizens in some tribes in California, to over 300,000 citizens each in the Navajo Nation and Cherokee Nation of Oklahoma. They also vary in their government structure, including how their courts are organized. Some employ non-Indian attorney judges, and their procedures and substantive law may closely follow the laws of the state that surrounds their territory. Others, like the Navajo Nation, require judges to be citizens of the tribe and may also require knowledge of the tribe’s language and culture. Further, although civil and criminal procedure and other court rules may incorporate outside standards, the statutory and common law may be unique to that tribal nation.
At first blush, this may be intimidating for non-Indian attorneys. It need not be. As a non-Indian practicing as in-house counsel for the Navajo Nation’s government, I have had to become familiar with Navajo language and the legal principles expressed in that language. I also have had to learn Navajo culture and history and their effects on the views of the courts. After 14 years of practice on the Navajo Nation, I am still learning. This is a fundamental requirement to do my job effectively. An attorney practicing in any legal system, whether in one of the 50 states, a territory such as Guam or Puerto Rico, the federal system, or a foreign nation, must become familiar with the unique legal culture to be a successful advocate. Practice in a tribal legal system is no different.
The Navajo Nation does much to educate outside attorneys on the uniquely Navajo aspects of its legal system. There is the Navajo Nation Bar Association, which requires attorneys to pass a bar examination that tests subjects such as federal Indian law, the Navajo Treaty of 1868, and Navajo land and family law. The Training Committee of the bar association holds a week-long bar review, where outside attorneys learn the basics of these subjects through presentations by both Navajo and non-Navajo bar members. Further, once an attorney passes the test, he or she is required to attend a traditional teachings course, taught by Navajos, that discusses Navajo history, culture, and traditional law. Through these processes, the bar association has licensed hundreds of Navajo and non-Navajo attorneys, as well as Navajo tribal court advocates, who are tribal citizens who have not attended law school but are trained in Navajo law. These attorneys and advocates advise and represent individual and corporate clients in all types of cases before the Navajo Nation’s tribunals.
There are also numerous resources to help non-Navajo attorneys navigate Navajo law. The Navajo Supreme Court’s opinions are available through several Internet sources, including the official Navajo Judicial Branch website (Navajocourts.org), VersusLaw, and Westlaw. The court’s opinions explain Navajo legal terms and principles in English, their sources in Navajo oral history and traditions, and their application to current legal issues. Navajo and non-Navajo scholars and practitioners have written law review articles, bar association publications, and books on Navajo law. These sources discuss in English the meaning of Navajo legal principles. Further, outside attorneys can associate pro hac vice or consult with Navajo bar members, Navajo language interpreters, and traditional law experts, who can also assist in explaining Navajo law.
The result is that there is a robust legal community practicing on the Navajo Nation, applying Navajo principles every day in contract, tort, employment, family, and other cases. Like the application of any substantive law, the application of Navajo principles in specific cases may be unclear unless and until clarified by judicial opinion. As in any jurisdiction, the law can develop and principles become clearer through advocacy in individual cases. Indeed, those principles may help your client in a given case, whether or not he or she is a citizen of the Navajo Nation. Through advocacy in individual cases, attorneys in the Navajo system have the opportunity to help develop Navajo law. Certain areas of Navajo law, particularly concerning commercial transactions and environmental regulation, are only recently being litigated within the Navajo Nation, and legal practitioners can do much to assist the judiciary in developing distinct Navajo principles.
Based on my experience in Navajo Nation court, the following are some observations on best practices for outside attorneys in tribal courts.
First, be respectful of the tribunal and its authority. It is a court like any other, and the general rules of professional responsibility follow you into that tribunal. Even if you are appearing before a tribunal to challenge that court’s jurisdiction over your client, you should conduct yourself with respect for that tribal nation’s sovereignty. Because of the requirement to exhaust tribal court remedies before filing a federal court action challenging tribal jurisdiction, you may be required to litigate in that court whether you or your client want to or not. The respect and decorum generally expected in state or federal court applies equally in tribal court.
Second, be aware of and conduct yourself in accordance with the culture and social norms of the tribal nation. Before you appear before that tribal court, ask experienced practitioners about what is expected of attorneys. It may be that what is acceptable zealous advocacy in state or federal courts is not acceptable there. For example, you may need to adjust your approach to examining witnesses, particularly elders or others respected in that tribal society. Further, your approach to opposing counsel may differ considerably, and your tone in your written motions and briefs concerning discovery disputes or other disagreements may need to be modified to be less adversarial. In some tribal societies, such as the Navajo Nation, words are considered sacred, and therefore “puffing” and other forms of manipulating meaning may not be well received. Further, how you express yourself is as important as the words you use. Yelling or aggressive gesturing, such as pointing, to make your argument may be effective elsewhere, but not necessarily in tribal court.
A discussion in another recent oral argument before the Navajo Supreme Court demonstrates this point. A non-Indian attorney was presenting his argument and raised his voice for emphasis. One of the justices of the Supreme Court interrupted his presentation and said simply, “hazhó’ógo,” a Navajo term roughly meaning to interact with others with patience and respect. As a longtime practitioner in Navajo court, the attorney understood that the justice was asking him to lower his voice and continue his presentation. He did so and therefore complied with Navajo expectations of attorney conduct.
Third, be knowledgeable of the tribal nation’s laws, but also be prepared to discuss how that law differs or not from state and federal law. As tribal courts are still developing, there may simply be no published opinion on a particular question of law, and a tribal judge may look to tribal custom or tradition, outside case law on a similar issue, or a combination of both. Further, the tribe’s statutes or constitution may mandate state law or federal law to apply in the absence of any tribal statute on point. When practicing in a tribal court whose nation still uses its native language, this also means becoming familiar with legal principles expressed in that language. This may require taking a beginner’s course on that tribal language and practicing how to accurately pronounce words, which may include sounds not present in the English language.
Navajo jurisprudence on civil rights is a prime example of this. The Navajo Nation has a bill of rights passed by the Navajo Nation Council, which, with a few unique additions, generally parallels equivalent federal constitutional rights. Congress has also mandated that tribes recognize certain individual rights in the Indian Civil Rights Act. However, tribes as sovereigns are not directly subject to the U.S. Constitution’s Bill of Rights. However, when interpreting the Navajo Bill of Rights, the Navajo Supreme Court has stated it will consider federal interpretations of similar constitutional rights, as well as Navajo traditional law, in deciding whether a litigant’s due process rights, for example, were violated. An advocate in the Navajo system therefore must be able to explain to the courts how federal courts view this right and also discuss what Navajo tradition may say about the rights and responsibilities of individuals.
Following these guidelines will, of course, not guarantee a victory for your client but will help you be the best advocate for your client. Ignoring them completely, however, may negatively affect your client’s interests, regardless of the validity of your legal position.
Practice in tribal courts is challenging but rewarding work. Taking seriously the unique aspects of tribal law is essential for any advocate to successfully advocate for clients in a tribal judicial system. Through a personal commitment to learning about tribal law and society and actively seeking help from experts in those areas, an outside attorney can do much to promote the development of tribal courts as institutions of justice.