Hierarchy of Roles, Laws & Custom

Above from left: Historic photo of livestock on a homesite, Western Agency; present-day homesite without livestock in vicinity; Cameron chapter meeting; Teesto Chapter meeting.

Introduction

For nearly a century since the Navajo Treaty of 1868, the federal government has added to or withdrawn from the reservation land base practically at will, imposing new policies and laws without planning continuum. Originally boundaried at 5,200 sq miles in 1868 and now spanning 27,000 sq. miles or the size of West Virginia or Portugal, the combined land bases of the Navajo Nation are like a quilt of land use management regulations and jurisdictions that cannot be understood without tracing each land base to its formation purpose and to the federal Indian and public land policies of its time. Since 1975, the federal Indian policy has been Indian Self-Determination while maintaining federal controls over reservation natural resources and federal governmental costs. On the Navajo Nation, a kind of tripartite system has emerged consisting of federal land use regulations; conforming tribal regulations; and tribal customary land practices and stewardship.

Hierarchy of Laws & Custom

revised 1/27/2024

There is a hierarchy in the application of laws and custom on the Navajo Nation, as well as the roles of the people, their leaders, and written laws.

Diné Fundamental Law is the critical document that attempts to put down in writing the Life Way of the Diné People, which for centuries has been verbally passed down. What is written down provides principles from which systems may be created. Enacted as CN-69-02 by the Navajo Nation Council on November 8, 2002 and codified at Title 1, Sections 201-206 of the Navajo Nation Code, it establishes the written Diné bi beehaz’áanii bitse siléí that declares the foundation of all laws. Other sections define governmental leadership responsibilities, and sets forth a chart showing a hierarchy that begins with the Diné People at the very top, followed by their leaders, and only then written laws. All the portions of the Diné Fundamental Law are frequently referred to, together, as Diné bi beenahaz’áanii.

Written in the declarative language of Diné culture, Diné bi beehaz’áanii bitse siléí is the most important portion, codified at Section 201 and presented in Diné bizaad (the Diné language) with an English translation. This section declares core foundational principles of the Navajo Nation. There are no imperatives like “must” or “shall,” yet the immutable nature of the core principles is understood. Law practitioners who are unfamiliar with Diné culture may find this section impenetrable and may even fail to understand how this can be handled as law due to the absence of imperative language. It is frequently referenced in governmental proceedings. Yet, there remains little trace of it in codified Navajo Nation law.

Sections 202-206 of the Diné Fundamental Law address governmental roles and how leaders behave, were intended to be re-addressed and revised after the people themselves establish the form of government of their choice.

The Navajo Nation Supreme Court has addressed the immutable nature of the core principles within Diné bi beenahaz’áanii in Shirley v. Morgan, SC-CV-02-10 (NNSC 2010).

To most Diné, custom is at the top of hierarchy of all laws where the Diné way of life is impacted.

The Treaty of 1850 and the Navajo Treaty of 1868 are considered sacred documents containing promises that must be fulfilled. The 1868 Treaty ended the people’s captivity at Fort Sumner (Hwéeldi). Both documents are the basis for the federal trust responsibility later specified and solemnized in several cases of the U.S. Supreme Court. Hwéeldi itself is a sacred source of existential understanding, as in what was practiced and known before Hwéeldi that was destroyed and what was then imposed.

Note: The U.S. Constitution (Article II, Section 2, Clause 2) provides that treaties are equal to Federal laws and are binding on states as the supreme law of the land.

Federal Statutes are near the top of the hierarchy of laws. Federal statutes are the applicable permanent laws enacted on a plenary basis by Congress and codified at Title 25 (Indians) of the United States Code (U.S.C.) and other enactments that impact land use across the United States.

Federal Regulations are next in the hierarchy of laws. Most federal regulations are codified at Title 25 (Indians) of the Code of Federal Regulations, which have not been waived by the Secretary of the Interior pursuant to a tribal primacy agreement or an approved tribal integrated management plan.

Navajo Nation Code & Amendments. All laws duly enacted by the Navajo Nation Council that do not violate federal law have full force on the Navajo Nation. It is to be noted that Navajo Nation laws that have evolved since captivity at Hwéeldi in the 1860s have tracked federal and state laws with timid attempts at creating an indigenous system of land practice and governance. The Navajo Nation Code is internally conflicted especially in regards to application of Diné bi beenahaz’áanii to governmental processes. It has not been updated since 2009 and is considered so severely outdated that it is rarely mentioned by officials in administrative land board or grazing committee hearings. Amendments to the code since 2009 are difficult to find as they are not indexed. This project has informally indexed amendments that our law students were able to find.

Navajo Nation Land Use Court Decisions. Navajo Nation court decisions have the same hierarchal standing as tribal enactments and have similar precedential value as decisions in federal and state courts. Navajo Nation judges have been activist in including custom in court decisions. The result is, at best, mixed and, at worst, damaging to customary land use practice. The court decisions are difficult to access, and therefore are not referenced by officials in administrative land board or grazing committee hearings.

State Laws have no application on land use management on the Navajo Nation except in very limited instances, including the following — where the character of the land base is NOT federal trust lands (e.g. off-reservation ranches purchased by the tribe); where checkerboard boundaries of individual trust allotments are unclear; where there is a governmental responsibility-sharing agreement (e.g. joint policing and joint maintenance of certain reservation highways); and where leases held by state entities provide for state law in certain respects (e.g. state-run public school facilities on the reservation).

Waiting for a Tribal Vision

Navajo Nation land use encompasses federal and tribal jurisdictions, and also numerous federal and tribal regulations that are dispersed, unavailable online, or otherwise too complicated to be readily accessed even by government workers and lawyers.

Navajo Nation tribal members assume that the federal and tribal governments must have a regulatory scheme in place that is internally coherent and which makes practical sense to those in charge. People are not aware that federal land use policies for tribal and public lands have greatly evolved over time, with laws playing catch-up with policies and patchworked across time. While regulations for management of federal public lands have caught up with multi-use sustainable yield integrated land management policy, federal regulations for management of federal tribal lands have not, and continue to reflect an out-dated single-use non-integrated policy. On the Navajo Nation, this will continue until the Navajo Nation is able to envision a Tribal Vision for integrated land use.

Urgency of Knowing the Laws – a note from Chief Justice Herb Yazzie

When I think about our history, the treatment by governments and the laws being used, I know the federal government, and the Navajo government, convey that the Diné people have their land and the governments are there to protect that land for them. It is implied that the Navajo people should be grateful that we are allowed to remain on the land. However, the governmental decisions on the use of our land do not spring from the fundamental laws that we, as a people, must follow if we are to survive. The unilateral mandates that continue to issue from these governments are piecemeal. They do not come from prioritizing our way of life. One after the other, both federal and tribal laws address immediate compliance with other mandates or shorted-sighted solutions. In many ways, the ad hoc laws shown by the chronology of how our land base has developed have destroyed Navajo life, and continue to destroy Navajo life.

There is a problem at the community level, at the family level, at the individual level, on the regulation of land use, and the problem is getting worse. We need everyone to know the laws, history and traditional practices that affect our relationship with land. We need, especially, our lawmakers, to take a hard look at the problem and to listen to the people, and we need the people to fully understand the way the laws have developed and continue to develop, that have never involved informed decision makers at every level, never involved wholistic thinking, and never been based on impacts on the Diné way of life.

Herb Yazzie
Black Mesa, AZ
Retired Chief Justice, Navajo Nation Supreme Court 2005-2015
Chair, Board of Directors, Indian Country Grassroots Support

August 9, 2021

Bila gáana k’ehgo nitsáhakees (Anglo Thinking & Concepts)

The land use scheme today is based on federal land use laws. All our tribal laws conform to federal land use thinking and concepts, in particular a sole reliance on leases and permits that we understand was a system initially designed for parks and reservations in which no permanent human communities are encouraged to grow and thrive for generations. Our Navajo Nation judges have attempted, in very limited and highly conflicting ways, to insert Diné land concepts in tribal court decisions. References to Diné methods and values may also be found in the Navajo Nation Code. However, the substance of our laws and even our form of government do not reflect Diné thinking. Compounding the difficulty, Anglo thinking and concepts controlling land management on public lands have evolved over time, but Indian Country laws have remained largely static.

For well more than a hundred years, regulatory laws of federal government origin on the Navajo Nation have controlled land use in ways that would be unrecognizable to ancestors of Diné today. To our communities, Anglo land use laws seem to be only about their written wording without regard to their origins or history, or how they fit into one another. The Anglo manner of thinking, bila gáana k’ehgo nitsáhakees, seems to only strive to be like a line or spear leading away from the point of beginning, towards a target, further and further away from origins. For Diné thinking, which relies on origins, this linear way results in lack of wisdom and chaos.

That regulatory schemes and policies interfere with traditional community life is something every Diné knows. Less understandable is what all the laws are, why they exist, what they do, what they protect and what they do not protect, and even which government is responsible, because they are scattered. They have never been gathered.

Understanding such things are necessary to have an empowered connection with these regulations including the ability to question them, use them, and most importantly, do the necessary tasks to reform them to make sure that bitsé siléí underlies them. Change is possible through knowing the context and content of laws. Ultimately, the goal is to ensure that the full scheme of laws enable future generations to remain in our communities, nurture familial kinships, and thrive.

We need the help of all levels of decisionmakers to achieve this –from the various governments, to our practicing lawyers and advocates, legal scholars, the matriarchs, community leaders, and most important of all, our youth.