Bill alters criteria for Navajo Nation justices

By Felicia Fonseca
Flagstaff, Arizona (AP) October 2011

A Navajo Nation legislator is pushing to raise the qualifications for tribal Supreme Court justices, prompting concern that tribal sovereignty would diminish and applicants would be less focused on Navajo law if the proposal is approved.

Russell Begaye has sponsored legislation to require justices on the country’s largest American Indian reservation to have a law degree and be licensed by the state bar association. Tribal law now calls for a bachelor’s degree and membership in the Navajo Nation Bar Association.

Begaye said the changes would produce more well-rounded justices and position the Navajo Nation to adopt a federal law that gives tribes increased sentencing authority if it chooses. A Tribal Council committee he serves on approved the bill.

“The argument for not increasing the qualification is very weak,” he said. “I think it’s time that we raise the bar for these critical positions on our nation.”

The tribe’s Judicial Branch has criticized the proposal, saying it has successfully created a unique tribal court system that increasingly relies on traditions and customs, and a nonadversarial way of solving disputes. To mandate state bar licenses would turn the focus from being well versed in Navajo language and culture to expertise in external laws, said Chief Justice Herb Yazzie.

“We oversee a living tribal justice system reflecting the importance of our tribal community, not a borrowed state or federal system in which our culture is merely anthropological speculation,” Yazzie said.

Officials in the Judicial Branch want the proposal delayed to give the tribal bar association a chance to survey its members and find out how many would meet the qualifications. They’ve also suggested it be amended to require that only two justices on the three-person panel meet the qualifications and to allow two years to obtain state bar membership.

The proposal doesn’t apply to the tribe’s District Court judges.

Begaye used the federal Tribal Law and Order Act signed into law last year to support the proposed qualifications. Under the federal law, the sentencing authority for tribes increased from one year to three years for a single crime. But sending people to jail for longer periods means that tribes first must provide public defenders, establish or update criminal codes and have law-trained judges.

Yazzie questioned the reliance on the federal law, saying the drafters of that law abandoned a state-bar licensure requirement for tribal judges in recognition of tribal bar memberships. The Supreme Court justices also do not sentence convicted offenders. Rather, they hear appeals from the district court and issue final decisions in cases.

Yazzie has a law degree, but Associate Justice Eleanor Shirley, whose permanent appointment to the bench has not been confirmed by Tribal Council, does not. A third position on the Supreme Court is vacant.

Begaye argues that more Navajos graduating from law school would return to practice on the reservation and in the court system if his bill passes. He said the qualifications support decision-making based on the law, rather than a set of traditional Navajo laws he called capricious. The full council could take up the measure during its fall session next month.

“I believe that person that has that kind of education and experience that comes with it will be in a better position to shape and mold the laws of the Navajo Nation,” Begaye said.