Chief Justice Tom Tso's ancestors settled their differences hundreds of years ago by gathering inside the traditional Navajo hogan and discussing the dispute for days until a consensus was reached.
Now, constantly struggling to strike the delicate balance between his people's concept of fairness and 20th century justice, Tso settles the same conflicts as head of the Navajo Nation Supreme Court.The task of administering justice on the 25,000-square-mile Navajo Indian reservation of the 160,000-member tribe which shares part of its northern border and, consequently, a variety of legal disputes with Utah is formidable.
Nurturing a fledgling judicial system born in 1959, wrestling with gray jurisdictional areas separating tribal law from state and federal law and battling public misconceptions and some criticisms make Tso's stewardship difficult. Nevertheless, Tso and others in the white-man's world believe the Navajo Nation has accomplished a great deal with its 29-year-old legal system.
"When you look at America 30 years into its court system, slavery was in effect," Tso said in his chambers in the shadow of a rock formation called Window Rock, namesake for the capital of the nation's largest Indian reservation.
In a short time, Tso said, the tribe's court system has come a long way, blending its own ways with the bureaucracy of modern justice so that now "the Navajo Nation court system is on a par with state and federal courts."
Traditionally, disputes between Navajos were arbitrated among the victim, the offender and any one else involved, all supervised by a tribal leader, or "Naat' aani," Tso said.
Similar practices are still used today when parties involved or the courts agree to appoint a "peacemaker," usually a tribal elder, to arbitrate a legally binding settlement outside of court.
Using peacemakers as an alternative in seeking justice has been successful in a variety of different situations such as in settling land disputes and arbitrating family conflicts successful enough that Tso implores other courts to consider the practice.
The peacemaker personifies the Navajo aversion to angry conflicts, the opposite of what is often found in litigious America, said Herb Yazzie, an assistant attorney general in the tribe's Justice Department.
"The emphasis in Navajo life is settlement and compromise," said Yazzie, "we'll spend days at a meeting trying to hammer something out."
Historically, the non-confrontational attitude among the Navajo meant that the tribe had no use for jails, let alone a formal judiciary. But times changed and the tribe implemented the federally imposed Code of Federal Regulations Courts in
the late 1800s, and in 1959, the Navajo Tribal Council created the modern tribal courts.
The Navajo tribal courts since 1959 have evolved, not without controversy, into a network of six district courts (a seventh will be opened in May) scattered across the arid reservation. The system also includes six children's courts and a supreme court with two justices and Tso.
Under the U.S. Constitution and nearly 400 ratified treaties and agreements, Indian reservations, including the Navajo, are afforded sovereignty and, in effect, enjoy the status of a different country within the borders of the United States.
Tribal courts, consequently, can handle most civil cases involving Indians on the reservation. Except for crimes such as murder, covered by the Major Crimes Act and under the jurisdiction of the federal courts, tribal courts can handle most criminal charges but are limited in their sentencing capabilities.
Offenses committed by non-Indians on the reservation are handled by state or federal courts, an issue contested by Tso.
Tribal sovereignty has only in this century been put into effect by the courts.
"The exercise of state jurisdiction . . . would undermine the authority of the tribal courts over reservation affairs and hence, would infringe on the right of Indians to govern themselves," wrote U.S. Supreme Court Justice Hugo Black in 1959 in Williams vs. Lee.
As a result of precedents set by cases such as Williams vs. Lee and Santa Clara Pueblo vs. Martinez, a 1978 case which affirmed sovereign immunity, the tribal court's 45,000 annual decisions are not subject to federal review, except under the rarest of circumstances.
The tribal court's right to remain sovereign with respect to its court jurisdiction is a matter watched closely by Tso. The privilege allows him to administer justice while respecting the customs still used by the Navajo.
"Indian tribal courts can retain their identity and maintain their uniqueness without joining the rest of the general American public," he said.
The Navajo Tribe is aware its sovereignty is scrutinized by legal practitioners who believe the tribe's tight grip on sovereignty and how it affects court jurisdiction is a nebulous area, poorly addressed by federal law.
"Federal laws foster the notion of enhancing tribal self-government. That sometimes conflicts with what the state governments have in mind," said Yazzie.
Congress, which has some authority over Indian nations, has reacted poorly in defining where a tribal court's jurisdiction lies, said Dennis Ickes, a special assistant Utah attorney general. Ickes, a former director of the Office of Indian Rights for the Justice Department, called jurisdiction "a very uncertain area of the law."
The dispute over custody of Michael Carter, whose natural Navajo mother wanted the boy back from his adoptive parents in Spanish Fork seven years after giving him up, is a prime example of the gray area ill-addressed by lawmakers, said Assistant Utah Attorney General Stephen Sorenson, who fought a suit filed by the Navajo Tribe challenging the adoption.
The federal Indian Child Welfare Act, the operative law in the case, poorly defined who had jurisdiction in administering the adoption the tribe or the state, Sorenson said. Because of the confusion, eventually the Utah Supreme Court reversed an earlier 4th District decision, remanding the proceedings to the Navajo Tribal Courts.
More thorough legislation by Congress could alleviate lengthy appeals, like in the Carter custody dispute, which dragged on for more than two years, Sorenson said.
Observers have criticized the tribal courts for the lack of law-trained professionals. Although the tribe is considering requiring its judges to have law degrees, prospective judges currently need only a familiarity with the law.
The practice of seating judges without law training and utilizing tribal advocates, who sometimes act as attorneys but don't have law degrees, limits the effectiveness and credibility of the Navajo system of justice, Ickes said.
But Tso, who does not have a law degree, defends the Navajo court system for not requiring full legal training for all its practitioners. A legal representative's familiarity with Navajo tradition is just as important, if not more so, as his or her technical abilities, he said.
And despite his lack of legal training, a review of Tso's own written opinions show he is "a seasoned" jurist, Tso said.
Navajo courts fell under the scrutiny of the U.S. Commission on Civil Rights last August when it met in Flagstaff to discuss human rights abuses on the Navajo Indian Reservation.
The group focused some of its attention on the 1978 formation of the Supreme Judicial Council, the tribe's legislative branch, a body including members of the tribal council formed to review decisions of the then-appellate court.
The council was created following a decision by the tribe's court of appeals to place an injunction on a tribal council decision to pay F. Lee Bailey $70,000 for the defense of then-Chairman Peter MacDonald (who now has been re-elected), who was under indictment for mail fraud at the time.
The creation of the judicial council prompted the commission to question witnesses about whether the court encountered interference from the tribal council, tantamount to the U.S. Congress meddling in the affairs of the U.S. Supreme Court.
Additionally, the commission investigated two judges who, after rendering decisions apparently considered unpopular by the tribal council, were removed from the bench in an incident referred to as the "midnight massacre."
The judicial council was a sore spot among tribal judicial officials. Tso acknowledged that he and his colleagues were "uncomfortable" with the council. But the judicial council acted on only a handful of cases and was junked by the 1986 Judicial Reform act and replaced with the independent Navajo Supreme Court.
The reform act purged the system of the judicial council and left the tribal court an entity independent from the tribal council and operating under the familiar concept of separation of powers.
"I don't think any controversy exists any more, especially where the legislature has any power to review any judicial decisions, . . . it just doesn't happen," Yazzie said.
Ancient Navajo tradition, as well as modern tribal code, ensures the judiciary remains independent. The courts need no oversight because the Navajo believe "persons appointed by the people to resolve disputes (are) unquestioned in their authority to do so," he said.
The Navajo courts have entered a new era of justice in the land where his ancestors first arrived in the 15th century, Tso said. Still retaining his grandfathers' ways of dispensing fairness on the dirt floor of a hogan, Tso now utilizes an experienced judiciary and a well-developed set of codes to achieve justice.
And attorneys who have worked as allies or adversaries of the Navajo courts say the courts have come of age.
"Relative to other tribes, it's fairly sophisticated," Ickes said.
Court venues across the reservation, a method of recording cases, and the increasing presence of law-trained practitioners "are all features that give it the appearance of a judicial system."
Navajo courts have developed their own case law recorded in the tribe's code, the Navajo Reporter. Precedents established there have been cited by the 9th Circuit Court of Appeals in San Francisco, Tso is quick to point out.
"I'm just looking forward to that day when the United States Supreme Court uses these as an authority to make a decision, and that day is not too far away," he said, placing his hand on the stack of codes.