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Tribal Sovereignty and Federal Trust Relationship

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08/02/20 History Reference this

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Many American Indians operated its judicial system through its custom traditional ways. The Navajo tribe is one of the federally recognized Indian tribes and has a custom traditional judicial system called peacemaking. There are 573 federally recognized Indian tribes in the United States. Peacemaking was the precursor to the Courts of Indian Offenses (also known as the CFR Court after the Code of Federal Regulations) that the Bureau of Indian Affairs imposed on the tribe. Navajos never abrogated from using of peacemaking. Navajos recognized tribal sovereignty and the federal trust relationship established with the federal government.

The Navajos are the largest Native American tribe by the measurement of population and land base (Lee & Lee, 2012). The land base was historically measured by the sacred mountain of Mount Taylor, New Mexico, to the east; San Francisco Peaks, Arizona, to the south; Blanco Peak, Colorado, to the west; and Hesperus Mountain, Colorado, to the north (Wyman, 1957). The Navajo Nation land base now consists of a 27,000 square mile reservation and reaches into Arizona, northern New Mexico, and the south edge of Utah with vast, rural landscapes (Merino, Iralu, & Shin, 2012).

The foundation of peacemaking began in traditional times Navajos used traditional custom values of k’e’ and hozho’ to guide the leaders in resolving disputes and decision-making. The traditional custom of k’e’ has been defined as the respect of friendship, peaceful relationship, or family relationship, and hozho’ is defined as extremely well or harmony and balance (Wall & Morgan, 2013; Yazzie & Speas, 2007). K’e’ and hozho’ are the basic concepts of peacemaking that are part of the traditional custom of dispute resolution. Peacemaking process is mediating disputes by encouraging people to fully talk out their problem, in order to reach a settlement and restore harmony for the parties, family, and community involved; Unlike European law, traditional Navajo law was not based on power but based on relationship and mutual respect (The Judicial Branch of the Navajo Nation, 2018). The peacemaking incorporated the use of k’e’ and hozho’.

According to oral history, Navajo culture’s origin began when Navajos were placed on mother earth and as part of the culture, leaders play a major role. The Navajo people used leaders to conduct peacemaking to resolve disputes that maintained k’e’ and hozho’ within the family and community. The Navajo Nation Supreme Court case of Office of the Navajo Nation President and Vice-President and Joe Shirley Jr. v. The Navajo Nation Council and Lawrence T. Morgan (SC-CV-02-10) states, “There is a well-known episode from our Emergence that tells how a dispute came to be, and how it was resolved.” The summarized opinion is as follows:

The emergence story began when the people could not agree to choose one leader among the wolf, bluebird, mountain lion, and hummingbird. The wolf was sent to the east and brought back dawn, which was our thinking, white shell as a mineral for offering, white corn for food and the song Sin doo Tsodizin. The bluebird was sent to the south and brought back midday’s blue sky, which was our planning, turquoise for offering, blue corn for food and wise words of Yodi doo Niil’iz Saad. The mountain lion was sent to the west and brought back the sunset, which was our life, abalone shell for offering, yellow corn for food, birth, and development. The hummingbird was sent to the north and brought back the night, which was our hope, jet for offering, squash for food and reverence. Furthermore, since beyond recorded time, the people understood the separate functions of leaders, and that in order to survive as a people, there must be collaboration and coming together both in the community and in the leadership chosen by the people to pool skills, resources, and characteristics (Office of the Navajo Nation President and Vice-President and Joe Shirley Jr. v. The Navajo Nation Council and Lawrence T. Morgan, SC-CV-02-10).

The earliest written recorded history is from 1800 (Eder, 2007; Iverson 2002). Before the influence of the United States, Navajo leaders were headmen who took care of their families and camps. The families believed the overriding principle of leadership was that Navajo leaders were like parents who settle disputes and maintain the k’e’ (Benally, 2006). Navajos believed that Navajo leaders must lead, govern, speak, and solve problems using Navajo language and cultural knowledge (L.Lee, 2014). Navajo leaders are called naat’aanii. Naat’aanii means the one who leads the people. Naat’aanii have a lifelong commitment, according to the Navajo people (L.Lee, 2014).

The Navajos resolved its disputes through peacemaking and lived a traditional life until the settlers and the United States government soldiers came to the southwest. The United States government soldiers begin gathering the Navajos and forcefully made the Navajos walk over 300 miles to a prison camp in Fort Sumner, New Mexico in 1864 (Webster, 2009). The United States soldiers forced 8,500 men, women, and children that to walk for 2 months known as “long walk” and approximately 200 Navajos died of starvation and exposure to the elements (Crow Canyon Archaeological Center, 2014).

At Fort Sumner, Navajos were divided into twelve villages and each village had a “chief.” The Army officers adopted a code to govern the conduct of Navajos. The chiefs handled the less serious offenses, and the twelve chiefs would serve as a jury for more serious crimes. The commander of Fort Sumner would serve as the judge for those crimes. Little if know of this first “court” system (The Judicial Branch of the Navajo Nation, 2018). The soldiers referred to leaders as chief and the leaders used their peacemaking methods to resolve disputes and minor offenses while in captivity.

The Navajo called the federal government soldier, the blue-suited men, and they did not understand why the government would force them to live at Fort Sumner. They wondered who were these people (Kluckhohn & Leighton, 1974). The history of the federal government began with the British government and the early colonies using the Papal decrees concept. The papal decree or papal bull is a type of public decree, letters patent, or charter issued by a pope of the Roman Catholic Church. The papal bull is the leaden seal traditionally added to the end in order to authenticate it (Wikipedia, 2018). In the 13th century, the papal decrees express a legitimate power when recognizing the right to claim title to land by the “discovering” crown. First, the decree came from the authority of the Pope. Second, counties wanted to claim new land through a legitimate power. Third, the decree was an accepted practice.

The Pope had legitimate power to recognize the right to claim title to land by the discovering crown. In the 13th-century crusade era, the Pope permitted several religious expeditions to recover the Holy Land from the Muslim. The reasoning was that the Pope had an obligation to take care of the Christian faith on earth and supported the Holy War because the war was defending the Christian faith. This was the groundwork of the discovery doctrine.[1]

Counties wanted the right to claim title to land by the discovering crown. The counties of Spain and Portugal understood the reasoning of the Pope. They went to the Pope for permission to take land through promoting Christianity. They pleaded that if they can possess land then they would convert the people to Christianity. The Inter Caetera I (1456) stated undiscovered by other belongs to the country that discovered the land or in the future discovery of additional land belong to the country that discovery if they were “not previously possessed by any Christian owner.” British used the Royal Proclamation of 1763 that stated Indian lived under “our protection” and to keep colonies out of Indian country. The British and colonies used this same reasoning to hold the title and entered into treaties with the American Indians. The colonies fought the British because the British imposed their laws on them and the American colonies won. The American colonies formed the United States.[2]

The United States became a nation by its constitution that Congress ratified in 1778. Although there was the Confederation Articles provision was States were not to interfere with Indian affairs, the 1778 ratified constitution is the law. The constitution gives the federal government the authority over the Indian Tribes. The treaty power is found in Article II, section 2, and clause 2 of the constitution. The regulation of commerce with Indian tribes is found at Article I, section 8, clause 3 of the constitution. The Supremacy clause that states federal law regulates Indian affairs supersede state law is found in Article 6, clause 2 of the constitution (Wikipedia, 2018).

The constitution allowed the federal government to enter into treaties with the Indian tribe from the east and the government held the land in trust for Indian, established a trust relationship and protected the Indian tribe interest. This was a new concept to the Indian tribes, which they did not understand. There was a question of whether an American Indian could sell its land to individuals. In the case of Johnson & Graham’s Lessee v. McIntosh, (21 US 543, 1823), the court ruled American Indian could not sell land to individuals. The Chief Justice Marshall ruled the federal government has the complete ultimate title, charged with this right of possession, and to the exclusive power of acquiring that right. American Indian tribes do not have to right to sell a property to individuals.

Before the Navajos entered into a treaty with the federal government, the United States Supreme Court defined the federal trust relationship between the Indian tribes and the Federal Government. The McIntosh (1823) was one of the three cases. Cherokee Nation v. Georgia (30 U.S. 1, 1831) the Court ruled that Indian tribes are a domestic dependent nation and the relationship with the federal government resembles that of a ward of his guardian. In the Worcester v. Georgia (31 U.S. 515, 1832), the Court ruled the state court had no jurisdiction on tribal land.

The United States wanted more land base for their settlers and encouraged settlers to move west using the doctrine of discovery to increase their land base. On May 28, 1830, President Andrew Jackson signed into law the Indian Removal Act that authorized the president to grant unsettled lands west of the Mississippi in exchange for Indian lands within existing state borders. A few tribes went peacefully, but many resisted the relocation policy (Library of Congress, 2018). The Indian resistances were Red Cloud’s War, Little Big Horn Battle, Chief Joseph’s flight to Canada, and Geronimo’s resistance.[3]

Many eastern American Indians used treaties to end the fighting and return to their homeland that the United States government set aside for them. In the southwest, the Navajos confronted the American and Mexico settlers moving into their ancient land. After the United States Army fought for New Mexico and California from the Mexicans, the Navajos continued to raid Mexican and American settlers. United States General James Carlton ordered Kit Carson to restrain the Navajos in New Mexico through destroying crops and starvation, forcing them to move from their ancestral lands to a distant, inhospitable reservation on the Pecos River at Fort Sumner (Foley, 2006).

 Four years later, the Navajo suffered overcrowded and miserable conditions at Fort Sumner, New Mexico the Navajo leaders signed a treaty with General James Carlton. On June 1, 1868, the Treaty was signed that allowed the Navajos to return to their homeland (Peter, 1990). In Article 1 of the Treaty of 1868, it read, “ From this day forward all war between the parties to this agreement shall forever cease. The government of the United States desires peace, and its honor is hereby pledged to keep it. The Indians desire peace, and they now pledge their honor to keep it” (Navajo Nation Code, 2005).

Changes in the Navajo culture began after the return from Fort Sumner. The culture values changed when Navajo children attended Christian and federal operated schools (Iverson, 2002). The changes continued, after the 1975 Public Law 93-638, the Indian Self-Determination Act, and the Education Assistance Act allowed Navajos to determine their own needs and incorporate their own cultural values in federal programs (Lyon, 1998). Many Navajos did not learn their culture including peacemaking process after beginning subjected to the American culture for nearly 107 years, from 1868 to 1975.

According to the Navajo courts, in April 1883, the Commissioner of Indian Affairs created the first Indian courts that referred to as the Courts of Indian Offenses (also known as the CFR Court after the Code of Federal Regulations). The CFR code attempted to deliberately destroy Navajo Indian’s customs and religious practices to control the Navajo People. The codes of the Courts of Indian Offenses provided that agency superintendents appoint Indian judges who could have only one wife and wear Anglo-style clothes (The Judicial Branch of the Navajo Nation, 2018). The requirement did not restrict the Navajo judges from applying their traditional tribal justice system of using peacemaking concepts in court decisions.

The Navajos incorporated their peacemaking concept in addressing disputes in the court of Indian offense. In 1892, the U.S. Indian Agent David Shipley reported in a report to the Commissioner of Indian Affairs that “The court of Indian offenses is composed of 3 judges and meets once a month or more frequently, if necessary. The court has done good work and relieved me of considerable business, which, in the majority of cases, can be as well, if not better performed, by them than by the agent. I can not call to mind a single case of theirs that I have had to reverse” (The Judicial Branch of the Navajo Nation, 2018). The federal government agent recognized that the tribal justice system of peacemaking played a part in the court of Indian offenses.

The Navajos were subject to the General Allotment Act of 1887 also known as the Dawes Act. Dawes General Allotment Act, also called the Dawes Severalty Act, (Feb. 8, 1887). The United States provided the distribution of Indian reservation land among individual tribesmen, with the intent of creating responsible farmers in the white man’s image. Senator Henry L. Dawes of Massachusetts introduced the bill and the bill became law in February 1887. Under its terms, the president determined the suitability of the recipients and issued allotted lands by a formula of 160 acres to each head of household and 80 acres to each unmarried adult, with the stipulation that no grantee could leave his land for 25 years. The Indians who received land became U.S. citizens, subject to federal, state, and local laws (Britannica, 2018). The allotment land of the Navajos is located in the New Mexico portion of the reservation.

 The Navajos lived on the reservation and made decisions that affect the tribe as a group using peacemaking concept with the United States Bureau of Indian Affairs supervising their activity. In 1922, oil was discovered on the Navajo reservation, and the Bureau of Indian Affairs formulated a centralized decision-making process similar to the United States central government system (L.Lee, 2007). The Bureau of Indian Affairs selected three Navajo men to make decision subject to the Bureau of Indian Affair’s approval. In addition, the Bureau of Indian affairs hired Herbert Hagerman to establish a Navajo tribal council, but the tribal council would not practice a centralized government system (L. Lee, 2007). Hagerman processed a resolution through the tribal council that gives him the authority to approve oil lease agreements on behalf of the Navajo people, and Mr. Hagerman did not protect the Navajo’s interest on the oil lease agreements. L. Lee (2007) concluded that in 1933, the Navajo tribal council removed Hager’s authority. Navajos became aware of the trust responsibilities of the federal government through this experience.

President Franklin Roosevelt signed the Indian Reorganization Act, also known as the Wheeler-Howard Act that required the tribal government to adopt the United States governance and constitution that would replace their government with city council style (Native Voice, 2015). In 1936, the Navajo council attempted to establish a tribal constitution that gave full authority to the tribal council and executive body. However, the Bureau of Indian Affairs disapproved the constitution (L.Lee, 2007). Instead, the Bureau of Indian Affairs agreed to create the Navajo Tribal Council and continued its oversight (L.Lee, 2007). The federal government exercises their trust responsibility through its oversight and it continues today.

From the Navajo court’s perspective, the 1934 Indian Reorganization Act at section 16, states, “existing powers of Indian tribes” allows an Indian tribe to develop their own judicial system and establish their own laws. On April 1, 1959, the Indian Reorganization Act established the Navajo Courts by the original authority of existing power of Indian tribes and the establishment of the court was rush after the Arizona Legislature introduced a bill to assert jurisdiction over the Navajo Nation (The Judicial Branch of the Navajo Nation, 2018). The Navajo Nation Council also adopted the Law and Order Code similar to the Court of Indian Offenses. Today, Navajos have the Navajo Nation Code with Title 17 being the Criminal Code (Navajo Nation Code, 2005).

The Navajos grew to understand that its government organization as a whole operates as a sovereign government. The Navajo Nation’s authority of sovereignty was from the Treaty of 1868 and affirmed a political status as a sovereign Indian nation (Austin, 2009). Sovereignty gave the tribe the authority to govern itself. The treaties stop the fighting with the federal government and allowed tribes to return to a homeland determined by the federal government with the federal government providing assistance to the tribe. Navajo Nation was no different. The Navajo tribe became the largest federal recognized Native American tribe that resulted in the largest tribal government system in the United States (Lee & Lee, 2012).

In 1980, Navajo Nation revived and formalized the traditional justice methods of peacemaking and the Navajo Court began to apply traditional legal principles in the court decisions. The Navajo Courts recognized common law, fundamental law, natural law, and traditional laws. The Tribal Council enacted the Navajo Nation Supreme Court and the courts applied the Navajo traditional principles in their decisions (The Judicial Branch of the Navajo Nation, 2018). Research showed that decision-making using cultural values has had multi-dimensional holistic layers that maintain a balanced Navajo life, and Navajos’ live are protected by traditional laws, customary laws, natural laws, and common laws (Lee & Lee, 2012).

Peacemaking session is not like a formal court hearing. The Navajo Nation Supreme Court stated in its guide “Any matter which involves certain personal, community, and economic relationship, if not otherwise prohibited by law, may be subject to peacemaking …. Depends upon the mutual agreement between the disputed parties.” The manual provides guidance to the process. The peacemaking proceeding is held at a conference room or even at a home where the parties agreed. The session begins with a prayer and the moving party has an opportunity to state the dispute and request from the opposing party. All parties have an opportunity to speak in the spirit of finding a solution. At the end of the session, a prayer completes the process. The peacemaking agreement is submit to the court for approval (Judicial Branch of the Navajo Nation, 2004).

The United States Supreme Court decisions continued to address the sovereign and the trust relationship of the federal government. The United States v. Mitchell (463 U.S. 206, 225, 1983) states “Where the Federal Government takes on or has control or supervision over tribal monies or properties, a fiduciary relationship normally exists with respect to such monies and properties.” In the United States v. White Mountain Apache Tribe (537 U.S. 465, 475, 2003), requires the federal government to protect and maintain assets and must not allow them to “fall into ruin on his watch.” In the United States v. Navajo Nation (537 U.S. 488, 2003), besides not ruling for Navajo, the federal government continues to have trust relationships with the tribes. The federal government continues the trust relationship with all Indian tribes.

 The Peacemaking survived the changes of the tribal government system and the Navajo Nation Supreme Court embraced the Dine’ Traditional Peacemaking in the court system that is located in all the district courts throughout the Navajo reservation. Peacemaking emphasizes:

“through stories and teaching, the Peacemaker dispenses knowledge, naat’aanii, in order to guide the whole toward a cathartic understanding of hozho’ that opens the door to transformative healing. The flow of hozho’ is a movement inward toward the core issue or underlying truth. Recognition of this truth and the ending of denial provide the opportunity to heal or mutual mending. Realization of the truth occurs when individual feelings are fundamentally satisfied. The resolution of damage feelings is the core material of the peacemaking session, hozho’ oji’ naat’ aah. Depending on the skill of the Peacemaker, hozho’ may be short or may take several peacemaking session (The Judicial Branch of the Navajo Nation, 2018).

The Navajo court can refer a case to the peacemaking program or the parties can seek peacemaking before filing an action in court. The Navajo culture is rich with the use of peacemaking and continues to survive today.

 In conclusion, Navajo operates its judicial system through its custom traditional way of peacemaking. The Navajo people used peacemaking to resolve disputes before the federal government imposed the use of the CFR court. Navajos never stop the use of peacemaking but used it during difficult times in their history. Navajo leaders have knitted in tribal sovereignty and the federal trust relationship by using peacemaking to help resolve legal issues. Peacemaking is a strong judicial traditional judicial system that survived for hundreds of years.

 

References

  • Austin, R. D. (2009). Navajo courts and Navajo common law: A tradition of tribal self-governance. Minneapolis, MN: University of Minnesota Press.
  • Benally, A. (2006). Dine’ Binahat’a’, Navajo Government (Doctoral dissertation). Retrieved from Indigenous Policy Journal Website http://www.indigenouspolicy.org/index.php/ipj/thesis/view/303
  • Britannica (2018). Dawes General Allotment Act, Britannica Encyclopedia https://www.britannic.com/topic/Dawes-General-Allotment-Act.
  • Crow Canyon Archaeological Center (2014). The Long Walk of the Navajo. www.Crowncanyon.org/educationproducts/peoples_mesa_verde/historic_long_walk.asp
  • Eder, D.J. (2007). Bringing Navajo storytelling practices into school: Importance of Maintaining cultural integrity. Anthropology and Education Quarterly, 38(3), 278-296. http://dx.doi.org/10.1525/aeq.2007.38.3.278
  • Foley, D. (2016) Real Kit Carson revealed, Denver Post, December 14, 2006. https://www.denverpost.com/2006/12/14/real-kit-carson-revealed.
  • Iverson, P. (2002). Dine’: A history of the Navajos. Albuquerque, NM: University of New Mexico Press.
  • Judicial Court of the Navajo Nation, 2004. Navajo Nation Peacemaking Guide – Navajo Courts. https://navajocourts.org/indexpeacemaking.htm
  • Kluckholn, C., Leighton, D. (1974). The Navaho. Harvard University Press.
  • Lee, L. (2007). The future of Navajo nationalism. Wicazo Sa Review, 22(1), 53-68
  • Lee, L. & Lee, T. (2012). Navajo cultural autonomy. International Journal of Sociology of Language, (2130, 119-126. Retrieved from http://www.academia.edu/2347216/Navajo_Cultural_Autonomy
  • Library of Congress (2018). Indian Removal Act, Primary Document in American History. https://www.loc.gov/program/bib/ourdoc/indian.htm1
  • Lyon, W.H. (1998). The Navajos in the American historical imagination, 1868-1900.
  • Ethno History, 45(2), 237-275.
  • Retrieved from http://ethnohistory.dukejournals.org
  • Merino, M., Iralu, J., Shin, S. (2012). Global health careers: Serving the Navajo community. Narrative Inquiry in Bioethics, 2(2), 86-89. http://dx.doi.org/10.1353/nib.2012.0037
  • Navajo (2012). Navajo. Cultural Survival Quarterly Magazine, June 1992. http://culturalsurvivial.org/publications/cultural-survivial-quarterly/navajo.
  • Navajo Nation Code (2005). Navajo Nation Code Annotated, Thomas West.
  • Native Voices (2015). 1934: President Franklin sign the Indian Reorganization Act. https://www.nih.gov/nativevoices/timeline/452.htlm.
  • Peter, I. (1990). Treaty of 1868 (Review of a chronological record of the Navajo people From earliest times of June 1, 1868). Ethnohistory, 37(2), 199-207.
  • The Judicial Branch of the Navajo Nation. (2018) Retrieved from: www.navajo-nsn.gov
  • Wall, L., & Morgan, W. (2013). Navajo-English dictionary. New York, NY: Hippocrene
  • Wikipedia (2018). United States Constitution. Found at en.wikipedia.org
  • Wyman, L.C. (1957). Beauty way. Tucson: University of Arizona Press.
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[1] Lecture notes from Sandra Day O’Connor Law School, American Indian Law (2018). 

[2] Lecture notes from Sandra Day O’Connor Law School, American Indian Law (2018).

[3] Lecture notes from Sandra Day O’Connor Law School, American Indian Law (2018).

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