Mark St. Pierre: "Mark St. Pierre. Hello, friends. I'm your host, Mark St. Pierre and welcome to Native Nation Building. Contemporary Native Nations face many challenges including building effective governments, developing strong economies that fit their culture and circumstances, solving difficult social problems and balancing cultural integrity in change. Native Nation Building explores these often complex challenges in the ways Native Nations are working to overcome them as they seek to make community and economic development a reality. Don't miss Native Nation Building next."

Mark St. Pierre: "On today's program, we examine the critical role that tribal justice systems and the rule of law play in providing the necessary foundations for effective governance and sustainable development, and what happens when those systems and rules of law are poorly designed, implemented and understood. Here today to share their thoughts in this important topic are Robert Williams and Robert Yazzie. Mr. Yazzie, a citizen of the Navajo Nation, is the Chief Justice Emeritus of the Navajo Nation Supreme Court. He is also a visiting professor at the University of New Mexico School of Law and has served as a Navajo English interpreter for the U.S. District Court. Mr. Williams, a citizen of the Lumbee Nation, is the E. Thomas Sullivan Professor of Law and American Indian Studies at the University of Arizona's James E. Rogers College of Law. He also serves as the Chief Justice of the Pascua Yaqui Tribal Court of Appeals and the Judge Pro Tem of the Tohono O'odham Nation. Welcome, Mr. Williams and Chief Justice Yazzie. Thanks for joining us."

Robert Williams:  "Thank you."

Robert Yazzie:  "Thank you."

Mark St. Pierre:  "In your opinion, why is the rule of law so critical to Native nations?"

Robert Williams: “Well, there's two primary reasons that you want a court system that treats people fairly and issues decisions that people can make their own plans for the future on. The first is the internal aspect. The people of the nation have to have confidence in their court systems, they have to believe that if people are arrested for crimes that they'll be prosecuted, that they'll be treated fairly, that their rights will be recognized and then victims are protected. They have to understand that their contracts will be enforced in their courts. Externally, you also want the outside world to have confidence in the nation's justice system for business relationships, for people that might be invited on to the reservation, for a whole host of reasons -- relationships with governments -- and so those are the reasons that most tribes do invest in court systems and legal systems and tribal courts are working so hard on trying to enforce the rule of law."

Mark St. Pierre:  "Robert, at [the] Navajo Nation, your approach is kind of blended with Navajo tradition and common law. How would you respond to that question of why is the rule of law so critical to the Navajo Nation?"

Robert Yazzie:  "My experience says that when Navajos go to court, they expect certain things to happen. One is to say shí­ né' en dool jool, means my mind will become at ease when this problem that I have is addressed and people look for a satisfied result. So when people feel confident with the court system, especially [the] establishment of relationship with the judge, knowing that the judge's role will be carried out to bring peace to the problems at hand."

Mark St. Pierre:  "We're all away that politics creep into court systems or tend to creep into court systems in all societies, but what is the impact of politics creeping into tribal court systems?"

Robert Williams:  "It can be particularly insidious. One of the big problems today in Indian Country is that tribes are saddled with constitutions and systems of government that really were imposed upon them 60, 70 years ago. Yet, at the same time, when those systems were imposed, many of the checks and balances of these western-style systems of constitutional democracy weren't incorporated. One of the most important is an independent judiciary, and most tribes today do not have an independent judiciary under their constitutions, and so where judges don't have the confidence to make decisions without looking over their shoulder whether a tribal politician might be unhappy, whether they might lose their job, justice suffers in any system, and that's particularly so in Indian Country."

Mark St. Pierre: ”Robert, what's your take on that?"

Robert Yazzie:  "I hear a lot of criticism. I think some of them have merit and some of are just pure assumption, because the outside world really doesn't understand exactly how a tribal court functions. If the outside world could really look at the details of how a tribal court functions, maybe people can appreciate what the tribal courts are going through. I've heard time and time again that there the politicians or the tribal council in any situation make decisions for tribal judges. I don't think that...that may have been true, but certainly today I think the politicians, the tribal politicians have really come to terms with their role. With the Navajo Nation, we had a case involving a pay raise and the public took issue on that and brought action before the court telling the Navajo Nation Council of 88, 'The process you followed to get what you want, to give yourselves a pay raise, is unlawful.' So the court was there to make the correction, and the correction it made is that they affirmed what the public stood for. Today, right now, the Navajo Nation Council have accepted that. I don't think they really liked the decision, but it's a decision that they choose to live with and I think they have taken...they take the courts very seriously. When it makes a decision, they want to give it support, to give it growth."

Mark St. Pierre:  "Rob, you've worked with a number of different tribes across the country. Can you give us examples of what a politicized justice system has done to perhaps hamper or derail community development and economic development, nation-building efforts?"

Robert Williams:  "Yeah, and I think it's important to recognize in a number of tribes, the Navajo are an excellent example, have moved toward an independent judiciary separating the tribal courts from tribal politics, but there are still a number of tribes out there that it's common practice sometimes for tribal elected leadership -- you may have a situation where the elected leadership changes every two years and then the courts change because people like to bring in folks they're familiar with, and so the expertise and independence that you've built up is lost. There are other situations where the business community both on and off the reservation just doesn't have confidence in the judiciary and doesn't feel that their contracts will be enforced so they'll be treated fairly, and so they may go to the tribal government and say, 'We want to have you waive your sovereign immunity. We won't sign this contract unless it's going to be litigated in state courts.' Then what you begin to get is just a general undermining of the rule of law throughout the entire reservation, and so when tribal governments do think that they can interfere in tribal courts and tribal law, it has this cascading effect, it has implications throughout the entire reservation economy and society."

Mark St. Pierre:  "How do you separate, what are good ways to create that true separation of the justice system from the rest of the tribal government?"

Robert Yazzie:  "I think in a smaller population-sized tribe it's much harder to deal with the separation of powers issue because everybody is related somehow. It's very hard to separate. But in a much bigger tribe like the Navajos or the Cherokees, I think they've pretty much come to accept what the functions of the different branches [of] government that is in place. The Navajo Nation doesn't have a constitution, so we don't have a constitution that says, there shall be an executive body, judicial body and legislative body. The way the code has been put together just gives that impression there is these separate branches, and I think that even though there are problems -- like in any other government there's problems trying to stay within your bounds and to carry out your functions. But I think the Navajo Nation has really gone through some trying times. As long as people understand that judicial independence means being able to make a decision independent of all forces -- government or political forces -- that is a decision that you can make in good conscience. 'A good decision made so you can sleep at night,' is what our boss used to always tell us when we were on the bench."

Robert Williams:  "And following up on that, there are specific steps that tribes can take. For example, I think the Chief Justice makes a great point that in smaller tribes, it's more difficult to achieve separation of powers cause everybody knows everyone and it may be that in that situation lifetime tenure for judges which is usually one of the ways that you achieve judicial independence might not be totally appropriate, but set terms, four years, five years. Make sure they're staggered so they don't necessarily coincide with the tribal government's election cycle. And then you have a really good system of review."

Mark St. Pierre:  "So what you're suggesting is that the judges perhaps be elected by the tribal membership?"

Robert Williams:  "Or if they're going to be appointed, let's appoint them for set terms instead of oftentimes what happens it's a year-to-year contract, then that can really erode judicial independence. But you also need a system of professional education, you need to make sure your judges are out there getting the latest education they can, that they're getting certified, that you're reviewing. There's a process. The Navajo courts have a great process where judges are regularly reviewed by the chief justice and reports are issued, you can evaluate people fairly and then put them up before the council and see if they merit being reappointed again, and that's a good way to try and get politics separated out of that process."

Mark St. Pierre:  "Let's take a look at recall. If, for instance, in a smaller tribe the people themselves are not satisfied with the performance of a judge and the pressure builds up consistently that this judge is not really working well within tribal tradition or within the beliefs or value system of the people, what are systems to recall judges?

Robert Yazzie:  "We follow a process that evaluates judges when they complete their two-year probation and at the end of their two-year probation, the probationary judges must go through a judicial performance evaluation where the public have their input or the staff of the judge has their input, where other practitioners who go before that judge has their input. This is a fairly new process, and through that process, some of the judges have been removed by the standing committee based on the process that's now set in place. So we don't really...we haven't had to do any recall. I think the appointment process has enough in it that it takes care of those problems."

Robert Williams: “Recall is one of those areas where I think you can really talk meaningfully about the difference between western systems of self-government and many Native systems. In western systems, the recall is a check of the popular democracy. A lot of legal scholars would argue that recall of judges is a bad thing because you want judges to make decisions whether or not they're against the popular will. In tribal systems, it may be a bit different, where you have traditions of consensus and traditions of equality and egalitarianism spread out across all members. So it may well be that recall could function as an effective check on what we might call judicial activism. Because these systems are so new, many times you're applying foreign systems of law and as a judge you might be a member of the tribe, you're trained in a white legal system, but that doesn't necessarily mean you understand what justice means for the people and whether or not it's culturally appropriate. So recall may well be one way that tribal communities can take back control over their legal systems."

Mark St. Pierre:  "Could either of you talk for a little bit about what you think the training or education should be of tribal judges. It's obvious that every tribal judge is not going to have the opportunity to go to law school for instance."

Robert Williams:  "I think that what's most important is that the tribal judge, particularly at the trial level, understand the community he's working with and understand the norms and values. Native Nations Institute talks about this idea of cultural match that if the rules and the principles and the laws that are being applied on the reservation don't match the cultural expectations and what people in that community think is right, they're not going to be obeyed. And so I think there's a really good argument for making sure your trial judges particularly understand the communities. At the appellate level, there you're starting to get into issues of constitutional interpretation, statutory interpretation. Again, it may not necessarily be that an appellate judge has to be a lawyer, but this has to be a person that receives training in many of the excellent programs that are available in national judicial colleges, at law schools, at universities where tribal judges at the appellate as well as the trial level can go and get educated by professors and experts and understand what the really important issues are to perform that function well."

Mark St. Pierre:  "How does Navajo handle the training of judges and people that work in the court system?"

Robert Yazzie:  "Earlier you asked a question about what should...that there is a great need for tribal courts to learn the basics of law, rules of law. But we don't stop there. I think what Rob was telling me, he talked about doing things pursuant to the cultural norms. To me what that means is for a judge who is well-trained, like say this is due process and under the constitution, as long as a person...a person gets due process and if the procedural requirements are met, minimal, that's good enough. But in the Navajo way we don't stop there. We take this concept of due process and take it over to the Navajo context and say, 'How meaningful is this due process when we apply it to this situation. What's the end result in applying this concept to this situation?' And that is what the thinking process goes through and that should be the way that judges are trained, is to have command of the western legal concepts. But if we stop there, then we're in big trouble. If we stop there period, then we're not doing anything to foster the growth of tribal courts."

Robert Williams:  "We do a lot of advising of tribes at the Indigenous Peoples Law and Policy Program and when they ask, 'Well, what can we do to stimulate economic development?' I tell them, 'Invest in your court systems, invest in the rule of law, invest in tribal judges.' What you'll see is, as the Harvard Project on Indian Economic Development showed, there's a direct correlation between tribes that have strong, effective judiciaries and the economic development environment, employment rates, education rates -- direct correlations. Tribes that invest in their court systems, to do the types of things that Justice Yazzie is talking about, are successful tribes."

Mark St. Pierre:  "How would a Navajo citizen who wants to be a judge for instance get that training today?"

Robert Yazzie:  "I think right now we are trying to do as much as we can to provide that opportunity. There are Navajo -- the young people are really looking for legal training, and right now I'm teaching for the Crown Point Institute of Technology, teaching the basics of law and an introduction to law, what that means and then how to think like a lawyer, how to make lawyer noise, how to prepare for bar exam and also at the same time bring in the tradition. You have this rule of law under the American Anglo system and here's the result. Then go across the street and see how the Navajos would approach the same problem. This is the process that or emphasis...this should be the emphasis in learning about law in Indian Country."

Robert Williams:  "And the Chief Justice is really focused on why I think being a tribal judge is a much harder job than being a regular judge in the Anglo system, and it may well be the hardest job on the reservation because on the one hand, as he explained, your tribal judge has to know the western legal system. They have to know western requirements of due process. Every criminal case in a tribal court can be reviewed on habeas corpus by a federal district judge, so you have them looking down at you. On the other hand, you also have to know Navajo custom and tradition or O'odham custom and tradition, to make that law relevant to the people whose lives it's affecting and it's constraining. And so where do you -- it's easy, you can go to law school, you can go to a judicial training center to learn about western jurisprudence and civil procedure, but where do you go to learn how to be a Navajo, where do you go to learn how to be Lakota. That's a knowledge that has to come from the heart, has to come from tradition, has to come from a community that really works on keeping that knowledge alive and making it work for them, and I think the most successful tribal court systems you see are the ones that do both those tasks, that can run the court system in an efficient effective way so that people appreciate that it's there, it makes the decisions it needs to make, but it's also making culturally appropriate decisions and decisions that are helping to move the community forward, not backward, not getting it entrenched in politics and internecine fighting that we see too oftentimes. And that's why it's such a hard job."

Mark St. Pierre:  "Let's take a look at that for a minute. The Navajo court system is well known for its incorporation of Navajo common law in its jurisprudence. How is that common law incorporated at Navajo just so our viewers can understand that alternative system?"

Robert Yazzie:  "There's two ways we use the Navajo common law in applying common law to situations. The grassroots people have their own process, the lifeway process, the peacemaking process, and they have their own facilitator who runs the process, and in that process people are able to find the problem at hand and be able to talk things out. Here's a problem and different people can say, 'This is the way I see the problem from my perspective.' And they're able to reach a solution. So in the talking things out is where they begin to talk about values and principles, and those principles and values are the underlying basis for what makes Navajo a common law. More recently there's been a move through our own rule of law to say in every case situation, the Navajo common law shall be the law of preference. So when practitioners come to court and that's what they're told, 'Yes, this may be the Anglo position, but what is the Navajo rule of law as a matter of custom?' So in terms of incorporating there may be an issue, an issue like, for example, a judge may hear a criminal case. There's a recent decision made by the Navajo Nation Supreme Court that dealt with this concept hozho. There was an issue how the police officer handled the defendant. He didn't really...there was a question about his reading of the rights to the defendant wasn't correctly done. So when the Supreme Court looked at those facts and they thought about hozho. color:#222222;background:white">Hozho  means do things cautiously. If you are going to explain, make sure that they understand what the process is about, cautiously and with respect."

Mark St. Pierre:  "So it's not a minimal just reading of the rights and as quick as you can read them and then throw the handcuffs on the guy and throw him in the car."

Robert Yazzie:  "...And to be honest about what you're trying to accomplish with that defendant."

Mark St. Pierre:  "So the defendant is treated with respect as a human being."

Robert Yazzie:  "Exactly."

Mark St. Pierre:  "You've worked Rob with a wide variety of systems. What are some other examples of positive Native influence on judicial systems, cultural influences, cultural norms that you've experienced that you could share?"

Robert Williams:  "Yeah. I teach Indian law and one of the things that we make sure students learn about is the development of what we call tribal common law, the use of tribal customary law, not only by the Navajo but a number of tribes. We're seeing a number of tribal courts recognize the need to incorporate custom and tradition as the common law of the tribe. The Hopi, for example, their Supreme Court recently decided a case on the issue of standing. That's a technical legal term meaning basically who can bring a case, who has a right to sue the government. As we know, in the United States, it's very hard to get standing. Congress can pass a statute and you would like to go to court and sue about it, but it's very difficult, you have to show a real interest. The Hopi considered that issue of standing and who can bring a suit against the Hopi tribal government and they said, 'You know, the western concept is just way too narrow.' We are a people that believe that everyone has a say and that government is accountable. And so you saw the Hopi Supreme Court diverging from western jurisprudence and enacting a broad principle of standing which fits very well. It really is a burgeoning, a growing movement, this use of tribal customary law and it's really improving the administration of justice in Indian Country."

Mark St. Pierre:  "Robert, what prompted Navajo to completely revise the way they do their court system and incorporate common law? When and how did that come about?"

Robert Yazzie:  "Well, we had so many laws that has been imposed on us since the western court systems came in 1892. But in 1950 the Navajo Nation said, 'Enough is enough. We are not...we're no longer going to put emphasis in applying federal law to solve our cases. We are going to do things the Navajo way.' The Navajo leaders back in 1982 said, 'Well, let's look at how business...law...decision-making was done 100 years ago,' and they found out that relations had a big role, that the idea of having relations in the dispute situation meant something, and also given the relations as we're talking about here, talking things out. Without control, without a judge, without lawyers, let the relations feel that they own the problem. Let them come up with solutions. Never mind how long it will take and how many days it will take. So when people are talking things out, they're able to make some connections. You can have a longstanding dispute like land. Land dispute is the hardest thing to solve in the adversarial system, and some of them never get resolved. But lo and behold, when you give the relations the opportunity to tackle that problem, they do go back in time and say, 'This is where the problem lies and then we need to come back to terms with one another, treat each other like relatives, treat each other with respect.' And treating each other with respect, [having] a system that addresses people as humans is very, very, very important, and I think...and I see that as the future of tribal courts. We've gone too far with the western way and I think the adversarial system had its days and it needs to change and I think, I hope in my lifetime that I will be able to see that this lifeway process merge with the western system and the tribal court center and I think that will show the world that Indian people have something, they have something to contribute to make a difference where people are always fighting one another."

Mark St. Pierre:  "Just as kind of a wrap-up question: we've talked about court systems that function properly, when you live in a nation where the court system is working properly, what are the ramifications for the people of that nation in terms of their attitude towards their own nation and their own potential?"

Robert Williams:  "There's a sense of law and order, that you have personal security, you have security in your property, you have security in your investments. Indian people are entrepreneurial, too. I think anybody who spent time in an Indian community knows that Indian people have the ability to go out there and invest and work hard and create a life and create for their families. They want the same thing as everyone else does, so there's those positive benefits. There's a sense in which tribal sovereignty is strengthened, because every Indian tribe that can get its act together in this area and have effective legal systems shows the world, and as Justice Yazzie just said, that Indian people have something to contribute. And I think if tribal governments are really going to take their place in 21^st-century American society that we need to really work hard in this area of creating effective tribal justice systems that make people feel not only safe and secure but proud of what it is their tribe is doing."

Mark St. Pierre:  "We want to give a heartfelt thank you to Robert Williams and Robert Yazzie for appearing on today's edition of Native Nation Building, a program of the Native Nations Institute for Leadership, Management and Policy at the University of Arizona. To learn more about Native Nation Building and the issues discussed here today, please visit the Native Nations Institute website at www.nni.arizona.edu/nativetv. Thank you for joining us and please tune in for the next edition of Native Nation Building."