Navajo Nation conduct hearings at College of Law

The Navajo Nation Supreme Court heard arguments on Thursday, Sept. 18, in a special hearing at the Sandra Day O'Connor College of Law at Arizona State University. The case, Ford Motor Co. v. Kayenta District Court, centered on whether tribal courts should have jurisdiction in the wrongful death case in which a Navajo Nation police officer was killed in a car accident while on duty.

Dean Paul Schiff Berman thanked the Justices for holding the hearing at the College of Law and told the students they were privileged to be able to watch a court in action and ask questions afterward.

The Navajo Nation Supreme Court is the first of several courts that will hold hearings at the College of Law this year. Others include the 9th U.S. Circuit Court of Appeals and the Arizona Supreme Court.

The Navajo Nation Supreme Court is of particular interest, Berman said, because it is the court of a sovereign nation, and there often are jurisdictional questions between tribal courts and state and federal courts. "There are 22 tribes that have lands within the state of Arizona," Berman said. "Virtually all have their own codes and their own courts."

Herb Yazzie, Chief Justice of the Navajo Nation Supreme Court, and a 1975 graduate of the College of Law, told students that the modern Navajo courts have evolved since the arrival of the Europeans, and continue to evolve today. "First there was the military occupation, then the treaties, then the Bureau of Indian Affairs courts, and it has evolved into the Navajo court system," Yazzie said. He explained that each of the Navajo Nation's 11 districts has both district and family courts, and each district has at least one trial judge, some have two. In addition, the Nation continues to use a traditional way of resolving disputes, called peacemaking, in which all parties agree to work out a solution. The peacemaking system was in place before Europeans arrived. Yazzie said the question of whether tribal courts have jurisdiction is nearly constant. "These questions are happening on a day-to-day basis, in reality, in our relationship with the U.S. government," Yazzie said.

Asked about the peacemaking system, Yazzie explained that Navajo law mandates the use of traditional law and values in the court system, and that the peacemaking system is practiced daily in cases where all the parties agree to participate. Lawyers who practice on the reservation are expected to know the law, he said. "As they say, 'When in Rome, do as the Romans do,' " Yazzie said, drawing a laugh from the audience.

One student asked which court would preside over a conflict between two tribes, and Yazzie said the dispute would have to be resolved between the two sovereign entities. "The bottom line in the use of courts is that you are going to someone else and asking them to make a decision for you," Yazzie said. "Human beings ought to resolve things between themselves. The best resolution is one you make, not someone else." Yazzie was joined by Associate Justices Eleanor Shirley and Louise G. Grant to hear the Ford Motor case.

The Navajo Supreme Court helda hearing at the Sandra Day O'Connor Collegeof Law on Thursday, Sept. 18. The case involved a wrongful death claim brought by the Todecheene family. Their daughter, Esther, an officer with the Navajo Department of Public Safety, died when her Ford Expedition patrol vehicle rolled on a dirt road in the Navajo Nation. The vehicle was one of several purchased by the tribe for the department through a dealership in Gallup, N.M. Ford maintains that Todecheene was not wearing her seat belt; her parents say the vehicle was defective, and the seat belt did not work properly.

However, the question at issue at Thursday's hearing was not the wrongful death claim, but whether the Navajo courts have jurisdiction to hear the case. Ford argues that the Navajo courts lack jurisdiction. The Kayenta District Court on the Navajo Nation ruled that it did have jurisdiction. Ford took the case to federal district court, which ruled the tribal court did not have jurisdiction. The Navajo Nation appealed and the 9th U.S. Circuit Court agreed with the federal district court, then vacated its own ruling and asked Ford to take the case to the Navajo Nation Supreme Court.

The 9th Circuit wanted the Navajo Nation Supreme Court to decide whether an exception applied that would give the Navajo Nation jurisdiction if the actions of a non-Indian "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." The Navajo Supreme Court also asked the parties to discuss whether the Treaty of 1868 with the United States allows the Navajo Nation to hear the case, and the effect of a recent U.S. Supreme Court opinion in Plains Commerce Bank v. Long Family Land & Cattle Co. Richard Derevan, attorney for Ford, argued that the only issue before the court should be the exception, and that it shouldn't apply because an automobile accident didn't constitute a threat to the tribe. The other issues were not argued in the earlier courts and, therefore, should not be allowed at this point in the proceedings, Derevan said.

Yazzie questioned Derevan over his assertion that the death did not affect the political integrity of the Navajo Nation. "If the death of one police officer is not sufficient, then how many must die before it is?" Yazzie asked. Derevan said the case was not a case that threatened the governance of the tribe, and one that could be handled by state or federal courts. Yazzie also asked about how far the family would have to travel to file a claim if the tribal courts were not open to them. Derevan said that the tribe should ask the state and federal courts to hold proceedings closer and more convenient for tribal members. Edward Fitzhugh, attorney for the Todecheene family, said the case had followed "a long, tortured path" to the Navajo Nation Supreme Court. He argued that a police officer is an obvious government operator and that the case does fit the exception. He also argued that Ford actively promoted the sale of vehicles on the reservation, and that it had used the tribal courts for its own purpose, for example, to assist in repossession of cars, and therefore should be subject to its jurisdiction in this case. The court took the matter under advisement and will post its decision on NavajoCourts.org when it is reached.

Below is a link that will take you the audio of the oral argument.
https://deimos.apple.com/WebObjects/Core.woa/BrowsePrivately/asu.edu.1417530170