Navajo Supreme Court Holds Oral Arguments at HLS

BY KATIE MAPES

Justice Lorene Ferguson, Chief Justice Herb Yazzie, Mohegan Tribe Council of Elders Chairman John Henry Clark, University Marshal Jackie O’Neill, Justice Louise Grant.

The flag of the Navajo Nation stood next to that of the United States in the Ames Courtroom last Wednesday when Harvard Law School hosted the Supreme Court of the Navajo Nation for the second time. Brought to campus by HLS, the Harvard University Native American Program, and the Native American Law Students Association, the three Justices heard arguments in the case of Perry v. Navajo Nation Labor Commission (NNLC).

At issue was whether the Director of a corporation who is not a lawyer committed unauthorized practice of law when she filed an answer pro se before the NNLC in response to petitioner Perry’s wrongful discharge claim.

Procedure in the court was roughly similar to that followed in state and federal appellate courts. Each side was given 20 minutes for oral argument, with the appellant allowed to reserve time for rebuttal. Chief Justice Herb Yazzie, Justice Lorene Ferguson, and Justice Louise Grant asked questions throughout.

Before oral arguments began, Chief Justice Yazzie asked both attorneys to focus on the application of Navajo values and law, if any, to the legal question before the court. In particular, he asked the appellant to address what is meant by the use of the word “person” in the statute forbidding the unauthorized practice in law.

Counsel for the appellant spoke on this issue at length, giving first a definition from Black’s Law Dictionary, which he referred to as the “White Man’s,” definition, and then analogizing the legal fiction of “person” to the medicine bundle, which has certain rights and duties in service and ceremony, and is given certain attributes like that of a “person.”

The respondent, the legal counsel for the NNLC, also incorporated Navajo tradition into his argumentation – stating that under the Navajo concept of hozho, which corresponds roughly to “harmony,” the parties had already settled this matter and thus no case or controversy exists.

Dean Kagan spoke prior to the hearing, welcoming the Justices, as well as tribal leaders from around the Northeast who sat in the audience. She praised the event as an “opportunity to expand our understanding of legal systems in the United States and how those systems operate,” stressing that increasing numbers of lawyers will find themselves interacting with those systems in coming years.

She added that, in this time of global conflict, we have much to learn from the Navajo legal system, with its use of over 200 mediators called Peacemakers and its focus on healing and the restoration of harmony.

The Judicial Branch of the Navajo Nation rivals that of many busy states and municipalities, and handles over 90,000 cases a year. It encompasses seven judicial districts, five of which have separate family courts. All appeals are made to the Navajo Supreme Court, upon which three Justices sit.

A unique feature of the Navajo Nation’s judicial system is the Peacemaker Court, a system of traditional Navajo mediation and arbitration. Based on the Navajo value of K’é, respect, responsibility, and proper relationships among all people, disputants “talk things out, consider all matters, find solutions, and commit to abiding by an agreement they develop and sign at the conclusion.” Peacemakers, recognized as officers of the court, guide the participants through this process.

The Supreme Court of the Navajo Nation is the only tribal court ever to sit at HLS. It first visited in 1999, when it heard arguments in Navajo Nation v. Means, a case concerning the jurisdiction of the Navajo judicial system.

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