Tribal Courts – Constitution Only Interpretation

            I left off last time talking about authority for court decisions. Among the possible authorities I included culture. If you’re an Indian Law theorist and teaching at the University of Arizona, you include culture as perhaps the premium form of authority. But what does the inclusion of culture look like?

            There are five methods of cultural inclusion:

  • 100% Custom as the Law
  • Culture as a Canon of Construction (Interpreting the Constitution)
  • Custom and Constitution Combined into a new law.
  • Non-Tribal Law Only.
  • Non-Tribal Law Supported by Custom.

One example of non-tribal law was the case of Frias v. Appellant (A Hopi Case). In Frias a tribal council filed ethics charges against its chairman. The council voted for conviction and the chairman was now trying to appeal the decision. The decision was that trial level was the appropriate venue. The appellate court did not have original jurisdiction. The foundation for the decision was the tribal constitution.

Despite the vast trove of cultural options, the Hopi in this case relied entirely on their constitution for the decision. Next post, we’ll turn to the Navajo Courts and describe how the Navajos used cultural tradition as the basis for a decision in Halona v. MacDonald.

Law Summaries are Prepared by a non-barred individual. They are not meant to replace legal guidance or advice.

Tribal Courts – The Question of Authority

            Upon the establishment of tribal government and tribal courts a pivotal question becomes one of authority. Tribal government exists with endless variation and a young Indian Lawyer needs to make the best use of the tools provided.

            The two most obvious tools are the constitution and the treaty. For example, the Pascua Yaqui tribe has a constitution formed in the style of an Indian Reorganization Act constitution. There are mentions of secretarial approval, the legislative body has strong influences in the judicial and executive branch, and there are options for the Federal Government to declare portions of the constitution invalid. Additionally, the criminal powers of the judicial branch are linked with statutory precedent from years ago. All in all, the constitution is restrictive and will play a prominent role in court decision making.

            The Navajos, by contrast, eschew a constitution altogether. A historical perspective on this is required for full understanding. Originally the Navajo were entirely independent and were governed by the principles of Dine’. Once the United States began conducting full-scale offensives against the Navajos the power of the tribes was curtailed. To maintain order the United States created a governing style based on village under “chiefs” and “sub-chiefs.”

            These “chiefs” ran the courts of Indian Offenses, they were responsible for stopping many crimes, most of which were linked to the culture of the Navajos. Years later when the Indian Reorganization Act was put into effect, the Federal Government wanted the Navajos to be the first to adopt a constitution.

            The Navajos refused as a form of social protest. Today the Navajos continue to operate a government without a constitution. The foundations of rule are a blend of statute and tradition. Navajo Courts, likewise, have integrated Dine’ precepts into their formal decision making.

            So the first rule of practice: Learn your authority. Getting evidence of culture can be difficult (especially for us German-Irish). Two lawyer skills that need cultivation in any form of employment, patience and listening, will be invaluable.

Law Summaries are Created by a Non-Barred individual. They do not constitute legal advice or expertise.

Theresa #7 – The Jeans

                This was Theresa’s kind of thrift store. There was no concrete floor, no glazed fluorescent lighting, just the snug feeling of a boutique. Of course, that’s why people went to buffalo exchange, aside from the amazing deals.

                The shopping trip was another one of Rachelle’s ideas to cheer Theresa up. So here they were, just after lunch during the afternoon gap in classes. The shop was almost entirely empty and the shopping racks were completely full, a perfect combination.

                Theresa walked a few feet away from Rachelle and started thumbing through a rack of olive green denim jackets. She stopped on a vintage style, the olive was fading to yellow, her brother had one like this, but he never let her wear it. She pulled it off the rack and held it to her torso, “what do you think?” She asked Rachelle.

                Rachelle cocked her head to the side and “hmmm”d. After a few seconds of silence, Theresa got the hint “not really my color anyway,” she said putting it back on the rack.

                Her task completed, Rachelle turned back to a row of hemp skirts while Theresa moved over to a rack of jeans. She thumbed through before stopping cold. Theresa reached in and pulled out a pair of light blue jeans; her eyes lit up. They were “PRVCY” and looked like her size!

                She flipped them over to study the tag and almost dropped the jeans clapping her hands in excitement. Rachelle looked over, “what?” she asked.

                Theresa let the jeans fall to the floor, “nothing,” she said nonchalantly. Rachelle eyed her suspiciously before turning back to her search.

                When she was satisfied that Rachelle wasn’t looking, Theresa knelt and felt the smooth denim in her fingers. She glanced at the tag and pursed her lips, they were a six and Theresa’s snug jeans she was wearing were a seven.

                She contemplated putting them back on the rack, but her eyes found the price tag again. Fifteen dollars? She was sure she’d seen these pants in her “Cosmo” for over a hundred. The deal was too good, she had to have them. Besides, she thought, she needed motivation to keep going to the gym. The thought of walking down campus turning heads and finally showing up Jerome made her smile. True, he wouldn’t be there, but it would be revenge enough.

                There was no way she could buy them with Rachelle there. Rachelle would fawn and say they were too small. They were too small, but that was no reason not to buy them, not with so many spectacular benefits to owning them. She tucked the jeans inside the rack and pretended to shop a few more minutes.

                “I need to head out,” she said, when she was certain no one would discover her treasure. Rachelle was done looking by this point and they left the store together. But later, Theresa thought, I’ll come back.

Tribal Courts – Overview

                Following on the heels of my series on “Federal Indian Law.” I am now branching into an examination of Tribal Courts generally and the Navajo Court specifically.

                As with FIL, the series will involve extrapolation from history. I will specifically cover how Navajo culture and history have influence its tribal court system.

                As with every other series, the reader is warned that these are the opinions of an amateur. I merely relate information through expository essays and I cannot say for certain that my interpretations are correct. I likewise cannot say that the implications of my interpretations are trustworthy. I would like to believe they are, but I’d be foolish If I accepted it as a given.

                I hope the reader will find this series instructive and come away with a fuller appreciation not just of Federal Indian Law, but of the lawmaking and keeping practices of a highly complex tribal culture.

Law Summaries do not constitute legal guidance and are no substitute for proper consultation with a barred attorney.

Rediscovering Artistry

                The Bible has its heroes, and it can be startling how often that modern Christians fail to resemble them. At the top of the list is Christ himself, God in man, who Christians are called not merely to emulate but to be in truth.

                This miracle is made possible by the indwelling of the Holy Spirit. Yet, many Christians refuse to acknowledge or even ignore this very fact.

                Another Biblical hero (but of necessarily less importance, infinitely so in fact) is King David. King David is given one of the Bible’s highest compliments “a man after God’s heart.” Yet as we look at the character of King David who is he.

                He is humble before God, both in his asking for forgiveness and his world view. Of the hundred and fifty psalms a startling amount are ascribed to David. Songs for every sort of occasion, songs for battle (Ps 18), and songs crying for help (Ps 23). Yet even deeper than the song is David’s heart that longed to create for the glory of his creator.

                Modern European-American society often misses this fact in its obsession with leisure. Where is the ancient idea that leisure exists for work? Where is the longing for study and intellectual development? Where is the desire to create?
                The Navajos historically have had the same drive. There is a saying that the poorest Navajo is the one with no songs. The emphasis is not on experience, but on creation. Beautiful sand-paintings created in hours are wiped away in a moment. This beauty is created for creation’s sake. When will Christian’s create for their creator’s sake again?

                When will Christian artists stop being the minority and become the majority. God’s gifts are given for his glory not for personal gain. All things are to be received with thanksgiving. Christians, create and create boldly, remember who gave you your gifts. Remember that God’s glory and not financial gain are our motivators. You cannot serve both God and money.

Theresa #6 – The Workout

                The gym always smelled like old sweat, Theresa wrinkled her nose. She walked through the entrance past the attendant playing angry birds at the desk and onto the springy black composite floor of the free weight section.

                Most of the gym was empty except for two football players spotting each other on the bench press. As the spotter cast a glance her direction, Theresa felt her face flush. When the spotter looked away she attempted to adjust her black workout pants to no avail.

                Her hair was pristine and pulled back in a ponytail. Her pink and black stretchy workout shirt felt tighter than usual. The bench presser had finished his set and now was nonchalantly glancing her direction. Theresa ruefully thought back to her vacation and the oodles of Christmas cookies made by Jerome’s mother, she knew it would be a bad idea.

                When the bench presser and the spotter switched places, Theresa hurried to the far side of the gym where the elliptical machines lined the wall. A fluorescent light over the cardio machines flickered intermittently making the black walls seem darker than usual.

                Theresa hopped onto the machine and adjusted the settings before selecting Tik Tok on her pink iPod Nano. As Ke$ha started singing about bottles of jack, Theresa shut her eyes and started moving ever so slightly to the music. When she had a solid rhythm she pressed start on the elliptical machine and started running.

                The machine cycled ploddingly at first and then began picking up speed. Theresa let out a long held breath and kept up the pace, all the while her eyes wandered around the gym. The two free-weight lifters finished their set and walked towards the showers, as they entered the locker room they cast a final look her direction.

                Theresa didn’t respond the embarrassment from before returned, but by now she was focusing on her workout. It remained like a nagging doubt in her mind that refused to surface. Theresa continued for several minutes when she heard the gym door open and saw a small crowd enter.

                There were at least ten of them, all dressed in blue and red jumpsuits, the volleyball team. As they walked towards her they laughed together. Theresa rolled her eyes; did the team only take blonde bombshells? That much peroxide couldn’t be a coincidence.

                The swarm made its way to Theresa’s side of the gym, when they were ten feet away the group went silent. No one looked Theresa’s direction, no one spoke, and the laughter became smirks as the team climbed onto the vacant machines.

                Theresa tried to focus on the run, but it was hopeless. They were all so perfect looking, it wasn’t fair! They kept looking knowingly her direction before turning back to each other and speaking in whispers. Theresa never caught them doing it, but she knew they were.

                When the elliptical machine hit twenty minutes Theresa immediately pressed the stop button and hopped down. As soon as she left her machine, the volleyball player on the end walked down and took her place. Theresa walked toward the locker room and paused to look back. They look like a Baywatch squad she laughed to herself.

                With resignation she walked into the locker room, she still had to study tonight.

Theresa #5 – Academic Advising

                It was the whale that fascinated Theresa the most, that massive whale (of what kind Theresa couldn’t say) leaping out of the water and frozen in time before the earth came crashing back. Underneath was the word “determination” in big blue letters.

                The only sound in the admissions office was the tapping of the advisor on the keyboard. Theresa sat, her hands in her lap, and fidgeted nervously with her fingers.

                The advisor took a sip from the coffee she had no doubt purchased from the college’s “Free Trade” coffee shop. Her hair hung in long waves to her elbows, covering her numerous ear piercings. The ring in her nose was still visible, as was the tattoo on her neck, a small patch of leopard print.

                Her blouse was hemp, and her olive green loose-fitting skirt hung just over her knees. Under the desk, red toms tapped impatiently on the ground. The advisor turned her pale green eyes on Theresa and stopped typing, “So what do you want to do?”

                “I don’t know,” Theresa ventured cautiously, “I’m a business major right now…”

                The advisor rolled her eyes, but didn’t interrupt as Theresa continued.               

                “I just don’t enjoy it that much…I thought it might be a time to change majors.”

                The advisor nodded and began tapping again. “You’ve finished your general eds, was there anything you liked?”
                Theresa thought for a moment. “I liked Geography…and comm…”

                Another sip of the free-trade latte and the advisor shivered and stopped typing, “you could try poli-sci,” she suggested, “social work maybe? Do you think you’d like teaching?”

                Theresa shook her head. “I don’t know.”
                “I’m signing you up for modern political thought…child psychology…what about a sport?”

                “That’s not really my thing,” Theresa ventured.

                “You have to take something…what about basketball?”

                Theresa didn’t respond she was thinking. She liked watching basketball, but playing? The advisor seemed to notice her pause and leaned forward. “Can I say something?”

                Theresa nodded.

                “You’re a sophomore in college and you’ve already finished your gen eds. I think you need to live a little bit, try a class. If you don’t like it, you can always switch. You’re only going to be in college once.”          

                Theresa chewed her lower lip and nodded. “Ok,” she said, “I’ll try it.”

Theresa #4 – Christmas Unhappiness

                “Sooo…what happened?”
                Theresa fidgeted with her hands under the table while Rachelle took another sip of her orange smoothie. Outside the blizzard continued, Theresa glance back at the table and her peppermint mocha with wilting whipped cream on top. She glanced curiously at Rachelle, if drinking the frozen drink on such a cold day bothered her she didn’t show it.

                The choice of drink was as obscure as her clothing. Rachelle was sporting a medium-length tan skirt, sweater, and ugg boots. The fashion had been dubbed: eskiho by Theresa when she had seen it first, but Rachelle insisted.

                Theresa might have continued her musing for several more minutes and stalled the inevitable question, but Rachelle’s cup crashing into the table broke her concentration. “Hey! Quit ignoring me.”
                Theresa raised the mocha to her lips and took a sip. This was not a conversation she wanted to have. She might have wanted to talk, but Rachelle was being so demanding and why did she have to dress that way? It made Theresa feel like a skank.

                It was another few moments before Theresa gave in. “Well…I went to his parent’s house for dinner Christmas eve.”

                Rachelle raised an eyebrow, “and…”

                Theresa felt her lip tremble, as she thought the words the memories came flooding back. “And I had his present all wrapped and we sat down for dinner and there was a ring at the doorbell.” The tears were starting to well up now. “He went to the door and when he came back…” her voice trailed off. Everything had been so perfect until.

                Rachelle waited a few seconds before motioning with her hands, “what?”

                “He had Bethany with him.”

                Rachelle’s hand went to her mouth. “His ex-girlfriend?”

                Theresa’s tears were falling fast now, “and no one said anything. He kissed her on the side of the head and then everything just spun and I left as fast as I could.”

                “Did he say anything?”

                Theresa nodded. “He sent me a text. Apparently they got back together and he wanted to tell me there…he thought it’d be easiest.” As Theresa let out a sob, Rachelle jumped to her feet. “We’re going home right now,” she said soothingly. Rachelle guided the distraught Theresa out the door to her car.

                The snow continued to fly, but Rachelle ignored it until they were both inside her Miata with the heater running. The car was drowned in silence as Rachelle  backed out of the parking lot and started home. All the while, Theresa couldn’t stop crying.