Navajo Justice

 --by Robert Yazzie

In January 2000, the Navajo Nation Council decided to revamp the Navajo Nation Criminal Code. The Council eliminated jail time and fines for 79 offenses, required the use of peacemaking in criminal cases, and required that the courts see to the rights of victims. The Council also incorporated the traditional concept of nalyeeh into the criminal code. Nalyeeh refers to the process of confronting someone who hurts others with a demand that they talk out the action and the hurt it caused so that something positive will come of it.

This decision represents a serious challenge to the courts of the Navajo Nation, whose jurisdiction includes tribal members in Arizona, New Mexico, and Utah. Navajo Nation judges had gotten used to the western revolving-door approach to wrongdoings — jailing, probation, new charges, revocation of probation, and the rest of it. Those hurt by crime were left out — the $1,000 restitution orders did not address the trauma caused by the crimes. But the Navajos now realize that the prison approach to crime does not work.

The western criminal justice system assumes that the problem is the actor, and imprisonment is primarily designed to work on convicted defendants. In contrast, traditional Navajo justice deals with people's actions. Western adjudication is a search for what happened and who did it; Navajo peacemaking is about the effects of what happened. Who got hurt? What do they feel about it? What can be done to repair the harm? The Navajo Nation courts get close to 28,000 criminal cases each year. The largest categories of crime are assaults and batteries (most often among family members), other crimes against family members, driving while intoxicated and other alcohol-related crimes, and disorderly conduct. The judges have few sentencing options because there is jail space for only 220 people at any one time. Instead, the Navajo justice system is turning to peacemakers.

In Navajo peacemaking, offenders are brought in to a session involving the person accused of an offense and the person who suffered from it, along with the “tag-along” victims of the crime, namely the relatives of the accused and of the person hurt by the accused. (I am hesitant to use the term victim, because we know that in many situations such as fighting within the family, the roles and accompanying labels are not that simple. See page 38 for an example.)

The sessions are moderated by a community leader called a “peacemaker.” The action is put on the table. People talk about what happened and how they feel about it.

A harmful act is “something that gets in the way of living your life,” and Navajo peacemaking deals with such an act by identifying it, talking about it, and devising a plan to deal with it.
One factor especially leaps out that is part of Navajo traditional knowledge. Navajos know post-traumatic stress disorder as nayeeor “monster.” What is the essence of the cycle of violence, in which children who are abused or neglected become offenders themselves? Nayee. Antisocial personality disorder? Nayee.

Peacemaking is based upon family therapy. As Philmer Bluehouse and James Zion of the Navajo peacemaker system have said, peacemaking is a ceremony that uses traditional practices now being “discovered” by the western world to kill or weaken “monsters.” The act is the focus of peacemaking; you get it out, put it on the table, and look at it. The process is much the same as the ceremonial practice of turning abstract monsters into something tangible and concrete before you, and then dealing with them.

Traditional Navajo law requires families to take responsibility for their family members. It is not a
coerced responsibility, but one that comes from the respect and love people should have for their relatives. In peacemaking, the relatives of those who hurt someone else come forward to help with restitution and to watch over their relative to be sure he or she does not offend again.

Rewriting the script

Donald Nathanson, a psychiatrist in the restorative justice movement, tells us that the key to violence control is “affect modulation.” He says that as we grow from childhood, we learn scripts — ways of responding to things that frighten or anger us. These scripts follow what he calls the “compass of shame,” relying on withdrawal, avoidance, “hurting self,” “hurting other,” or some combination of these. If the script is an intense one, we see withdrawal into alcohol, avoidance by becoming a street person, literally hurting others, and hurting self in drug-dependence, suicide, and other self-destructive behaviors.

Those kinds of scripts are familiar. Harmful scripts cannot be addressed using suppression tactics. They are best addressed by showing people the harmful effects of their conduct and the fact there are better ways of dealing with the things that frighten or challenge them. Navajo peacemaking speaks precisely to “the compass of shame” by subduing harmful scripts and teaching people how to avoid hurting others.

In Navajo thinking, thought is the inner form of speech, and speech is the inner form of action. It's a simple enough concept — as you think, so will you speak, and as you speak, so will you do.

If your action is fueled by alcohol or drugs, it is going to hurt others. What does someone who hurts others think or reflect about that? In the Western system, there is nothing other than ineffective punishment to compel someone who hurts another to reflect on what he or she has done. There is nothing to make people face their actions and their effects. There is little to involve those who get hurt, including the tag-along victims — spouses, children, and relatives.

We say you should start your day with prayer and by seeking inspiration, and take that inner thinking and turn it into a plan. The plan then becomes action, following on what you thought, planned, and spoke. At the end of the day, you reflect on what you did so that you can do better tomorrow. That is the good way.

A symbol of healed relations

Some are surprised to learn that in traditional Navajo justice, restitution for a wrongdoing can be symbolic. It can be a piece of jewelry or some other item of little nominal value but great symbolic value. Horses are prized highly by Navajos, and they are a form of restitution for serious sexual insults.

How does symbolic restitution help someone who is hurt? Navajos are more interested in what the restitution means than its value. Does the item used for restitution say, “I'm sorry”? Does it say, “I honor your worth and dignity with this thing that we Navajos prize”? Does it say, “Let this be a symbol and something tangible to remind us that we have talked this hurt out and entered into good relations with each other”?

We know that peacemaking works. It has proven successful in problem areas such as driving while intoxicated, delinquency, family violence, and alcohol-related crime. It allows families to be involved in helping their relatives (whether they were the ones doing the hurting or the ones who got hurt), and it helps everyone look at the monster of the action and its effects.

Can Navajo peacemaking prevent harm in addition to dealing with crimes after they happen? About 25 percent of all Navajos are children nine and under — a huge youth cohort. If we know that a child who is abused or neglected is more likely to enter the cycle of violence, doesn't it make sense to put resources in place for children? Peacemaking supplements child protection programs to help both children and parents. Philmer Bluehouse left the Judicial Branch recently to take Navajo peacemaking into the schools, where he can reach out to the children who are hurt.

The peacemaking challenge

The Navajo Nation Council exercised a great deal of courage and foresight in declaring the system broken and making traditional Navajo justice the preferred criminal justice method.

Will this new approach work? It poses difficult logistical problems. There are now approximately 250 peacemakers; how can the Navajo Nation courts recruit and train enough peacemakers to handle 28,000 criminal cases a year?

If you can't build new prisons and fill them, what do you do? You leave the process of putting serious offenders in prison to the federal government under the Major Crimes Act (which punishes felonies committed in Indian Country), and you direct the Navajo Nation justice system to focus upon traditional Navajo justice.

This is a bold experiment, but if it works, it may offer lessons to an America that is beginning to recognize that you can't lock up a major portion of the population (usually people of color).

Perhaps there are other ways to deal with crime; the answers may lie in dealing with actions, not actors, allowing people to face and solve their own problems, using peacemaking for crime prevention by getting at the nayee early on, and rewriting old scripts.

We Navajos knew about all that stuff traditionally, and it is time for us to remember.