Clerking for the Supreme Court of the Navajo Nation

         This Court of last resort operates much like the Supreme Court of the United States. Taking appeals from the various lower courts, this three-judge panel interprets the many laws of the Navajo Nation. One clerk, representing the judges and writing their legal opinions, comprises the legal staff. Despite its apparent lack of funding (and dearth of legal training) this Court represents the highest priority of the legal system in the Navajo Nation; and does it with poise and confidence. Our superiors were incredibly intelligent and good-hearted in their efforts.

       Two of us spent our week working cases in the clerk’s chambers. Our first day included a brief discussion of Navajo Common Law. Shortly thereafter we were given two case files. Our instructions were simple: write a legal opinion worthy of publication in the Navajo Law Reporter. We were to write the initial draft of the legal findings of the Court on two issues of first impression. Needless to say, we were shocked.

       The Court is sorely over-burdened with incoming cases, a result of the role of the Court. The Supreme Court of the Navajo Nation operates more as a law-making body than as a simple interpreter of the laws. This comes as the Tribal Council (legislature) passes statutes charging the Court with defining the specific intentions of the law, no doubt an attempt at political duck-and-cover. This distinction–intentional law making–makes for a very different kind of judicial system from its counterpart in our constitutional government. Learning to write opinions declaring new law was a difficult challenge. It would seem that the debate between judicial activism and restraint was settled years ago.

       The incredible responsibility that ensues with an internship in this Court is nothing short of spectacular. In no other externship have I ever had such an impact on the law. Our legal opinions are now recorded in Navajo legal history (we were told our drafts would become the final opinion in both cases). The Clerk made sure to remind us of our University’s importance in the role of law-making on this reservation. Our interns have written dispositive opinions of great importance to the Navajos for years. I sincerely hope we continue this proud tradition in the future, benefitting the Navajo Nation and its people as a legal resource. 

       Jay Shannon

Reflections on a Week Spent in the Navajo Nation

After spending the past week in the Navajo Nation, I am filled with respect for the people of the Navajo Nation for the abuses they have suffered in the past and for how they continue to fight to keep alive their history and traditions. I found the Navajo reverence for nature, family, and morality to be extremely commendable, and I hope to carry the lessons taught to me by the Navajo Nation with me for the rest of my life. The Navajo Nation believes that “fundamental law” (which basically boils down to law of nature) should be given much greater deference than “man-made law”. At first, I found this distinction to be confusing, until my supervisor explained that men are fallible and that nature cannot be changed, and therefore must be considered before any code or regulation. This distinction really changed my perspective on what is right and what is wrong, and will give me pause in the future to consider ethics and morality and the impact on nature when carrying out man-made law.

I spent the week clerking at the Navajo Nation Supreme Court and working on a labor dispute. After about fifteen minutes in the office, my supervisor handed me a case file and told me to get to work on recommending a decision for an appeal from the Navajo Nation Labor Commission. After my initial apprehension in deciding a case based on a code I was unfamiliar with, I was struck by the respect given to Navajo employees through the Navajo Preference in Employment ACT (“NPEA”), which mandates that employers give employees written notice and just cause for termination, since employment is treated as a property right in the Navajo Nation. The NPEA codifies issues of morality inherent in Navajo fundamental law by demonstrating respect for the individual and the individual’s place in society through employment law. In the end, I wrote a memorandum decision that I feel encapsulates the concept of fundamental law by requiring that the statute of limitations for filing a claim against an employer is linked to the mandatory written notice of termination, since this action respects both the employee and the Navajo Code. 

Although I learned a great deal about the law throughout my week at the Navajo Nation Supreme Court, the most significant aspect of the trip for me was being able to strengthen old friendships and gain new ones. My supervisors, Michael and LaVerne, were incredibly kind, hospitable, and knowledgeable, and I am so grateful for the time they took to teach me about law, Navajo Nation history, and life. I am also in awe of my incredible colleagues on the trip, who are passionate, generous, crazy smart, and on their way to changing the world. I feel richer for knowing all of these people and I feel inspired by them to do my part to make the world a better place. This week has been one of the best of my life and I am extremely appreciative of this opportunity.

Erin Mee

Working with the Public Defenders at Navajo Nation

         The predominate image of public defenders in the American zeitgeist is of under-qualified, over-worked, recent law school graduates who will offer such substandard legal services a defendant may be better proceeding pro se. This perception is often compounded when dealing with Federal Indian law and Tribal law, due to historic practices of denying tribes self-determination and self-governance. The United States stripped away portions of tribes’ ability to govern, and then turned around and blamed problems faced by tribes on their lack of governance.  While recent decades have seen minimal returns of criminal jurisdiction, particularly in the area of domestic violence, it often comes with the requirements of conforming tribal court systems to the Anglo model with less regard for traditional restorative justice and peacemaking that do not mandate jail time. Trying to balance federal limitations and tribal custom is a continual challenge, particularly when examined in conjunction with the notion that tribes need to import the American model of justice, one focused on punishment, which has resulted in 25% of the world’s prison population and being the only country to sentence youth to life without parole. Understanding the difficult balance between federal, state, and tribal jurisdiction is not something that can be fully understood in a week’s experience although it pervades every single step attorneys and tribal advocates take. There are centuries of shifting policies and attitudes to take into account and simply deciding that everything needs to be more “Americanized” would be to repeat historical errors and violate the current policy of the federal government which stresses the importance of allowing tribes to determine their own governance, and as much as possible deliver their own services.

      Despite the difficulties I knew I would face as an outsider to the tribe, I was incredibly excited for my placement in the Navajo Nation Public Defense Office. Having already taken American Indian Law and been offered a summer clerkship at DNA People’s Legal Services, I was anxious to see the how the policies played out in practice. When I arrived and met my supervisors Kathy and Rosa, I knew I found a place where my ideals and passions were not just tolerated, but celebrated. These women did not see public defense as a stepping stone to a larger career, but as a life-long calling and plan on staying with PD until their retirement. Public defense is not easy work and it takes a unique level of dedicated and determination to stand up every day and fight for people that many think are not worth the energy. They strive to uphold a high standard of due process while retaining traditional values. That these women have continued to make that stand for longer than I have been alive inspires me in ways that words cannot adequately convey. There are no material goods or words to offer that can express my thanks for the time they spent and wisdom they shared with me this week. The best I can do is continue their amazing legacy by remaining committed to the aid of those who would otherwise have nowhere to turn.

Dee Glickman

Work at the Navajo Tax Commission

           

On Sunday, March 9, 2014 we woke up in Red Valley, AZ at WCL Professor Rosser’s parent’s home. The night before we had arrived really late as our flights got delayed. I had left at 5am on Saturday morning from my home in Washington DC for Chicago, IL, then got re-routed to Dallas, TX and then finally to Albuquerque, NM from where we drove to their farm house on the Navajo Nation. We saw beautiful scenic views and the clear night sky was amazing with thousands of stars. The next morning we had traditional breakfast with everyone and headed out to see Navajo nation. We drove around the mountains and took several pictures.

            We arrived at Monument Valley, UT in the afternoon and I saw one of the most breathtakingly inspirational places on earth. These natural mud monuments stood thousands of feet tall without any man-made interventions. I thought to myself, we have one Washington Monument in Washington DC and it is constantly in repair mode sometimes open to public and sometimes closed. Here in Monument Valley, there were hundreds of monuments standing tall. One Navajo lady called it their Mars Red valley. We went on a drive through the monuments; some hiked and just walked around.

            The day ended with traditional Navajo dinner at the View Restaurant on top of the Monument Valley. The fry bread meals reminded me of traditional Pakistani Poori bread which is also fried in oil. Navajo people are just like South Asian Brown people. If it weren’t for my headscarf, I would easily be mistaken for a Navajo woman. They all look just like me and are the most humble and nice women. After dinner, we headed to Window Rock to prepare for the busy work week ahead. Our group comprised of sixteen law students from American University Washington College of Law. We will all be working at various placements across Navajo Capital. I get to work at the Navajo Tax Commission and help the Tax Attorney. I am really grateful to be here. It is an honor and a privilege. Hope to make the best use of my time!

Saba Ahmed

Tolu's Navajo Nation

       The Alternative Spring break trip has been awesome, from the very first day up until today, Its been one interesting new thought or the other. I decided to take this trip because it would be a great insight into the lives and history of the Navajo People. Before going on this trip I had no idea what the Nation consisted of and its jurisdictions.

       However, by the very first day, I got a brief history and current event break down from a fellow student (who is awesome ) and I felt I was really prepared for my work week. On my first day I worked for the DOJ litigation department and I worked on researching the relevant law and case law on appeals on trust lands. I was very delighted that I finished the research that day and was able to provide my boss with the right information.

          The next day I went to work for the Chief Prosecutor. She is an incredible person and her love for her job makes my path as a lawyer so much clearer. I went to court with her that day and got to experience first hand Navajo nation laws, rules of evidence and criminal law calculations. It was mostly all I could talk about for the next day. On Wednesday, I started work on my project. The Navajo nation and the FBI share jurisdiction on certain offenses. Due to the lack of funds and the general investigative power of the FBI, most, serious violent offenses are sent to the FBI.

         Formerly they never sent a notification to the Navajo Nation if they made the decision to not prosecute. However a new policy made that possible, the problem being the letter of notification of denial to prosecute were sent after the statute of limitation under Navajo law had expired. MY job was to look through all the letter and create a spread sheet from which a statistical analysis to be derived to cure the problem.

The Cherry on this already beautiful cake is that I got to fly on a private jet with my Boss to attend a case that was on remand from the Supreme Court at Tuba city and the interactions in that meeting gave me a view into the complexities between the Nation and the United States.

I would not have traded this experience for anything else.

Tolu Odukoya

Work with DNA

      This week at DNA-People's Legal Services was like an amazing sampler of law. I started off with assessing whether a client qualified for Social Security Disability Insurance. After I wrote up a brief memo on that client's medical issues and possible disability claims, I drafted a complaint for a breach of contract for a client who paid for services he never received. That was followed by two client interviews. The first was seeking assistance with a housing benefits claim, and the second needed help sorting out a debt, mainly because he only spoke Navajo. Next was a closing letter to a client, recapping the power of attorney services provided and explaining the remaining custody issues he still faces.  To close out the week, I am drafting a motion to compel which needs to be filed by close of business tomorrow. 

      The work I did is only a small fraction of the options available. DNA was especially accommodating, letting us choose cases that we thought were interesting from their caseload. The hard-working people there were welcoming and friendly. Not only popping in to check up on us, but patiently explaining the nuances and additional complications of tribal law. The organization is nearing its 50th anniversary and its clearly a relied upon by the community. Some of the work they do for the people who walk in the door is more in line with social work than legal work. But the attorneys assist them with their problems regardless, because people count on them and without DNA, they wouldn't know who to turn to in Navajo Nation.

Angela Chen

The Modernity of the Diné

             I am working at DNA-People’s Legal Services, which provides free legal aid to people who cannot afford it. The lawyers I work with are really great and do a lot to help people in need. Two of them are about the same age as me and we get along well. One thing that is very cool is the large number of clients who speak Navajo, or Diné bizaad, as their first language and use translators to communicate with the lawyers. It is very much like being in another country, and in a certain way there is something more here than the United States I know.

       

            After work, I hiked up Window Rock a second time, with Pious and Tolu. Navajo Supreme Court clerk Michael Smith was gracious enough to lead us up to the top. There is a memorial to the World War II code talkers and Michael showed us where his father’s name was engraved. His father was in the battles of Saipan, Tarawa, and Iwo Jima. There were only about 440 code talkers, but they were one of the most important factors for victory in the Pacific.

          

           After the hike, we all got dinner with Michael. He talked a lot about modern Navajo history, like the militancy and activism of the American Indian Movement in the 1970s. He also talked about the turbulent events of 1989, when supporters of the impeached Navajo chairman Peter MacDonald attempted to overthrow the government.

            
            I am fascinated with Navajo history. While most American school textbooks end with the ethnic cleansing of Native Americans, the Navajos’ own history has continued on to the present and is as rich as ever. The Navajo Nation is truly a nation. It is the largest reservation in the United States, is bigger than many small countries, and is at least as interesting.

Brian Bierne