Peacebuilding

Law Way vs Life Way: Robert Yazzie

Notes from an address by Robert Yazzie, Chief Justice Emeritus of the Supreme Court of the Navajo Nation, at a panel discussion Conflict Resolution in "Indian Country" at the Association for Conflict Resolution, 1 October 2004

Yazzie contrasted what he called the “Law way”, characterized by authority, rules, decisions, and penalty, with the “Life way”, based in relations, talk, agreement, and healing. Peacemaking isn't ADR – alternative dispute resolution – but ODR: original dispute resolution. He offered a Navajo word for something that’s been through hell and come back to surface in a good way.

Peacemaking is not something you can isolate. It's only a part of the life way. Indian nations adopted US law ways, with code and books, as pretext, to satisfy the surrounding world that they could operate in a “civilized” fashion. The structure and operation of tribal courts mirrors that of state and federal courts. Judges like rules; never mind the needs of the victim or the offender, the process is about the rules.

Of 560 Indian nations, 280 have tribal courts. By 1978, the National Indian Court Judges’ Association surveyed "Indian courts and the future”, a study on court operations and improvements, but didn't mention the traditional “life” way. Navajo consider “bujo naat'aanii” when they choose leaders. They look at the person, and their quality: how well they speak, think, work with people. In 1991, Congress authorized funds for tribal courts in the Indian Tribal Justice Act. But no money was actually appropriated. So, they lobbied to have language in the bill that would recognize “Life way”, and include statutory protection for “hands-off” solutions; acknowledge traditional tribal justice practices as essential for life and culture, and include traditional methods of conflict resolution, without altering the traditional conflict resolution form. There was no agenda attached because there was no money to attach it to. “Conditions are all about ways to make America look good,” Yazzie posited. “Now, after 35 years of advocacy work on this issue, there’s still no money. But the language is there. Indians can work with Western justice, but there's a feeling that Indians still have to be controlled.”

Adjudication versus mediation – is one good and the other bad? Law addresses disputes through adjudication by independent 3rd parties based on facts and laws given. It’s difficult to get truth out of parties. The Law way is largely dispassionate. It may appear fair and impartial, but it leaves out human element, which is the foundation of life way. In relations, the important thing is your place in the relations setting: your clan, which is well-structured and the basis for relationships. The hardest thing to cope with is when people reject the life way. They need to look at the human element, consider emotions. In the law way, in my court, when elder would stand up because he had something to say, he was told to sit down, that he was holding the court in contempt.

How to merge the two ways, so that one can help the other? Consider emotion, treat parties as humans, consider respect, care for needy, as core values. Life way: talk with one another, make agreements, then healing can take place. Some lawyers challenge the life way as unfair. They don't want their clients to be out of the court system, as peacemaking is just a process. They want to know how rights are addressed. A recent UN draft on indigenous nations raised the concern of individual rights vs collective rights. The “Life way” addresses both.

Does the collective supercede the individual l in “Life Way”? You don't know what outcome will be. “Life Way” has nothing to do with taking property or liberty. Boujona hastlee is the Navajo term for bringing justice to parties so that no one party has his tail between his legs and the other has his tail up. In our way, all tails are up.

A good way: planning is an essential element of Navajo way. American law way makes no room for planning how to make things good for the parties.

You have to have faith in the community. The only way justice can be done is perceived to be the law way. The “Life Way” gives victim and offender both chances to talk, for offender to accept responsibility, to look at what harm has been done, to whom, how it could be repaired, and prevent recurrence.

Navajo justice is not visible in USA. In fact, Navajo have led the field of REAL Indian law. There is Indian Affairs law, but most of that is “Law-way”, aimed to control Indians. It has nothing to do with improving quality of Indian justice. I have explained how custom and tradition apply. I have written decisions on custom and tradition. Despite that, the US Supreme Court decided against 2 cases of Indian justice. I have approached congress to say that some nations, like Navajo, have systems to deal with this. “I briefed Sandra Day O’Connor on all this, and she said, ‘That’s nice, but isn't it time we all lived under one law?’ ”

In the case of Shirley vs Atkinson Trading Post: Navajos declined the hotel occupancy tax. Solid findings and arguments were developed. Renquist said "not good enough". One way to assert jurisdiction is consensual consent. So what's “good enough”? We want the power to do business and handle our own affairs. The Justice said the law way is "ee-yah" -- scary! Expressed in plain English, the arguments were still declined. The Supreme Court said we have a right and capability to run our own justice system. Souter said don't bother with non-Indians, or ones who come in from outside and don’t understand your customs, you can use the traditional justice system for that.
Some other judges have agreed, saying "Life way doesn't apply in a multi-cultural setting."

Peacemaking can be used for a range of purposes including drug court, family problems, domestic disputes, any case. Indigenous law and custom were first recognized in 1555 in Spain. USA took a while to catch up. "Aztec law" was published but not translated into English until the 1990's. Not until 1940 was the first book published on Indian law other than Cheyenne.

There are two ways to strengthen tribal law:

• recruit natives into law school and including aboriginal law into curricula
• adopted laws – as Canada, the US and Mexico have done – and amend the constitution – as Mexico has done – to recognize Indian law.
  
  Laws to support and recognize tribal justice have been passed with no money, and government has no idea how to do job. Honor, respect, and recognition are required. Let the old traditions grow. The body of knowledge comes from generations past.