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Navajo Nation Supreme Court Hears Perry Oral Arguments at Harvard Law School

CAMBRIDGE, Mass. – Navajo Nation Supreme Court Chief Justice Herb Yazzie, and Associate Justices Lorene Ferguson and Louise Grant, heard oral arguments in the case Perry v. Navajo Nation Labor Commission at the Harvard Law School in Cambridge April 12.

Elena Kagen, dean of the law school, welcomed the court justices, tribal leaders from around the Northeast, and about 200 students and faculty to the hour-long proceeding.

Kagen introduced the court, saying that it was a “rare privilege” to have the Navajo Nation Supreme Court visit the law school. It was only the second time in history that the court had visited Harvard.

For his part, Yazzie said after the court adjourned that the justices had come to Harvard in an effort to educate people.

“Indian nations are sovereign entities with their own laws and their own way of resolving disputes,” he said. “Many people in the American government are not aware of that. Relations between Native Americans and the government can improve if we educate people.”

Kagan expressed a similar viewpoint: “The significance of this visit extends beyond this specific legal issue. It is an opportunity to expand our understanding of legal systems within the United States and how those systems operate … At this time of world conflict, we may have much to learn from the Navajo Peacemaker Court system.”

The hundreds of peacemaker courts across the 26,000-square-mile Navajo reservation add a unique aspect to the Navajo judicial system. The Peacemaker Court system settles civil disputes by applying traditional Navajo methods of conflict resolution. The concepts of k’e’, “respect,” and ho’zho’, “harmony,” are critical to this process, during which participants find a consensual solution to the conflict and commit to honoring an agreement that is signed by the parties at the end of proceeding.

The Peacemaker Court system works with seven district courts, five family courts and the three-member Supreme Court, which serves as an appeals court. More than 100,000 cases come before Navajo Nation judges, justices and peacemakers during the course of a year.

Perry began in 2005, when Melinda Perry complained to the labor commission that she had been wrongfully discharged by the Utah Navajo Development Council. Rebecca Benally, director of Utah Navajo Development Council’s Even Start Program, filed an answer with the commission. Her action raised the question of whether Benally, by acting in a legal matter though she was not a member of any bar, was unlawfully practicing law; and it was that question on which the Supreme Court had been asked to make a ruling. Edward Dobson, from DNA Legal Services, represented Perry. Raymond Etcitty represented the commission.

The court asked Dobson to present arguments on the legal definition of the word “person,” which he did both in terms of “white man’s law” in which a corporation can be treated more or less as a person, and from the traditional Navajo perspective, in which a medicine bundle can be given certain attributes of a person and as such has certain legal rights.

The court faced several challenges.

One such challenge was to figure out how to meld the Anglo-European court system with the traditional Navajo system and how to do that in such as way as to take into account the complex needs of the nation. For example, if a person could appear pro se only to represent himself or herself, then every time a corporate matter was adjudicated, the corporation would have to hire an attorney. For small businesses on the reservation, this requirement would be an onerous burden, argued Etcitty.

A second challenge was how to decide such issues without opening up the possibility of an appeal to a U.S. court, which would take the matter out of the jurisdiction of the Navajo Nation’s court system.

And a third challenge, brought up by Etcitty, was how to proceed in this case, where the original litigants, Perry and UNDC, had already settled their dispute.

Etcitty asked for a dismissal of the petition because the parties had resolved the issue. “There’s no case because there is no controversy,” he said. “The reliefs requested by the petitioner cannot be granted because the case has been settled. Miss Benally and Miss Perry have resolved their dispute, so further action [by the court] is not appropriate.”

The chief justice told Etcitty, “I’m concerned that a non-licensed person filed pleadings with [the] Navajo Nation Labor Commission. The criminal statute prohibits the unauthorized practice of law. Isn’t filing of pleading the practice of law?”

Etcitty responded by saying that in order for the court to consider a criminal offense, such as the one brought up by the chief justice, the Navajo Nation prosecutor would have to file a complaint. Since that had not been done, there was no criminal matter before the justices.

Ferguson tried to clarify the issue of when a person could represent a corporation in legal matters. “Shouldn’t we require that counsel represent corporations when disputes cannot be resolved outside of court?” she asked Etcitty.

Etcitty’s argument distinguished between conflicts concerning business entities created under Navajo law and those with outside corporations. “When contracts are done under Navajo tradition, those can best be left to peacemakers. But when multimillion-dollar corporations are dealing with small Navajo corporations, maybe the small corporations should be required to have lawyers,” he said.

Harvard students commented on the event later. Joshua Anders, a member of the Choctaw Tribe of Oklahoma, said, “Many law students do not realize that tribes are sovereign nations that often have developed legal systems … It was interesting to compare the United States’ advocacy-based legal systems to the conduct of the attorneys and justices during the Navajo Supreme Court hearing. There was much less interrupting, and time was generously given to fully address issues. There was an air of mutual respect not often enough present in other courts.”

Anders is the president of the Native American Law Student Association at Harvard and a research assistant for Oneida Indian Nation visiting professor Carole Goldberg.