Volume 12 Number 2
January 1973

Stephen Conn

AT Ramah Navajo High School, a legal education program will research, prepare, and present a fundamentally different kind of high school program emphasizing in all aspects the uniquely pluralistic legal environment in which the student as a Navajo resides. For the student, his dual identity as a member of the Navajo Nation and as an American citizen will be stressed as the impact of customary law ways, the Navajo common law, and the common law developed through state and Federal jurisprudence are presented as they actually exist within the context of life in Navajo land.

The members of the traditional Navajo community may be called upon to relate their own ideas about norms for behavior and ways to solve problems to those of an attorney or formal institution within the Navajo or state judicial system. The judicial official or Anglo attorney must attempt to perceive Navajo law ways as he communicates with his client.

The Navajo high school student’s posture is somewhat different from that of the Navajo adult, who was reared in a traditional environment, or that of the Anglo attorney. For him, the recognition that both kinds of law ways are relevant to his life, and worthy of regard, will be a lesson that will not only help him in interface situations in non-Indian institutions but also will help him to assume the role of interpreter and cultural intermediary for those who can relate only with greater difficulty to the non-Navajo world and its special and often arbitrary ideas about how things should be defined and how problems should be resolved. Most important, as a student with increasing understanding of the comprehensive nature of Navajo thoughts about law and dispute resolution, be will interpret Anglo law with increasing respect for what was already present in Navajo society before Anglo law and arrogance toward Navajo historical tradition arrived and made its presence felt in Navajo land.

He will ask with candor, "What works for my people?" and will be equipped to join the generation who will not feel inhibited about modifying institutions, and foreign ways of dispute resolution that do not work for Navajo people.

For example, consumer problems will be studied not only from the perspective of the formal law’s definitions of rights and duties that are inherent in a contractual relationship, but also the Navajo ideas about the rights and duties that are inherent in agreements of sale about various items such as goods, or land.

Family or domestic relation questions concerning marriage will explore the Navajo conception of marital relationships and the rights and duties of the husband and wife and compare these to the definitions imposed by state or tribal codes written by outside attorneys.

In short, the conflicts and parallel ideas in a range of subject law areas will be discussed with an emphasis upon real problems and ideas that are still currently held by Navajo people.

Navajo ways of resolving disputes of different kinds informally and formal remedies offered by tribal, state and Federal courts as a teaching strategy as well as a teaching objective will be explored. Exciting possibilities will be offered the participant in a "moot court" session that pays equal attention to customary methods and to formal methods and that allows the students to evaluate the success of techniques for problem solving developed by the American jurisprudence and by the Navajo people.

Consumer education. As it embodies elements of the formal law of contract and the law of torts, the Navajo student will learn how to deal as a consumer with specific problem situations familiar to him and his parents. Two principles of these are: Navajo versus trader in the various functions performed by this monopolistic institution in rural areas of Navajo land; and Navajo versus car dealer (or town merchant).

Within each relationship, there are specific elements that have their basis in formal or in traditional dealings or conceptions of property as they have evolved in the Navajo experience. Chief among these are: Making of the contract--the bargaining experience; Money management--securance of credit, understanding of secured property, understanding of credit; Dealing with disputes over fraud, shoddy goods, and contract areas.

General behavioral objectives will be: (1) To give the student a firm understanding of his parents’ traditional views of property as it is employed within these commercial contexts so that they may act increasingly as sophisticated consumers in their own behalf and as they speak for their parents and plan the future development of their Navajo community; (2) To give them a firm grasp of bargaining and informal dispute resolution techniques as they may be carried out with the trader and car dealer without the aid of lawyers; (3) To show how the state or tribal court may be used to help them secure consumer protection in individual disputes; and (4) To show them how to restructure legal and economic relationships with traders and car dealers through political efforts and community organization in order to secure consumer protection for all Navajo people in the consumer community.

General teaching strategies. As a general matter, teaching strategies in each subject area will focus upon the disputes or encounters in each context and not upon a presentation of abstract rules of procedure. Students will be encouraged to identify with or to portray the participants through several devices for learning.

(1) Role playing in dramatization of encounters and disputes in the open classroom context will be a principal vehicle of learning. To illustrate: a class of 20 is divided in groups of five. Each group will select a leader and be instructed to proceed to an individual in the middle of the room who is a trader to pawn a necklace. Attempts by the trader to cheat the consumer will be noted by the other groups as they are successful. The trader will speak Navajo. Or again, a car dealer will be dealt with as he attempts to sell a "lemon" to a subgroup, or have their leader sign a blank contract. Other groups will see if the participating group asks the correct questions, or if it is misled and will criticize their peers in a post-encounter discussion. In a similar vein, dispute resolution will be learned as each subgroup divides and argues a dispute over property rights before an individual in the center of the room who portrays a judge or, again, a traditional conciliator. The other subgroups will observe and criticize, and then argue positions in disputes themselves. This will take place in Navajo and in English, depending on the forum (tribal court or traditional conciliator, or white judge in the state court).

(2) A casebook of Navajo experience will document typical disputes about consumer problems and personal property generally, to show how these problems are presented in tribal and state courts and how they are resolved. Commentaries and discussion questions will guide the students and teachers. These disputes will provide the source of some dramatizations, as students and teachers suggest how they would have acted.

(3) Active projects: Class participation in projects which will "spill over" into the community is a third projected teaching strategy in consumer education. Proposed projects are development of a consumer cooperative, and use of a local credit union by class members for savings and loans in their own personal affairs through the school credit union.

These projects will entail participation with Navajos from other parts of the reservation who have worked on cooperatives, as well as local bankers and a CUNA representative, who will explain their institutions. These same teaching devices, i.e., role playing, the casebook, and activity projects, will be used in the two additional subject courses.

Although the three areas of conflict and relationship are divided here and will be divided in the texts and teaching manual, it is projected that a teacher may intersperse conflicts from any of the three areas in the same session, as he becomes familiar with the material and perceives the relationships. Thus, contracts with merchants and agreements with neighbors over land usage do have parallel legal implications as disputes and can be treated jointly or independently within the frame of separate courses.

In lieu of an independent course on, e.g., "What is law and what is a legal system" or "How problems are solved in courts and in traditional ways," this information will be interspersed in the dispute resolution that progresses around the three major subject areas of consumer law, family law, and the course on property damage with neighbors.

As students evaluate their own roles and those of the third-party dispute resolvers, this information will be introduced.

Law and the Family. Once again the focus will be upon property, both real and personal, as it is used, enjoyed, and transmitted within the Navajo family of today. The rights and responsibilities of the husband, wife, and children as they were set within the context of the extended family, matrilineal hierarchy, and clan were the focal point of Navajo law ways and social organization, and continue to be important as they contrast or accord with formal law’s definitions of familial rights and duties. The course will attempt to show the Navajo youngster how the laws of Navajo society and of the state both define how he is expected to relate to this cornerstone of the Ramah community.

Subtopics will be: Marriage, property, and disputes; the sheep and the grazing permit; children, their rights and duties; death in the family, inheritance, and the law.

The chief behavioral objective will be to reorient the student to his family through the traditional and formal systems of law. The disparity between the written tribal code and traditional ideas of familial rights and responsibilities has been particularly disorienting to Navajo youngsters. So, too, the displacement of parental authority by boarding schools has created a gap that locally controlled schools are only beginning to perceive as they create an environment where parents must reassume responsibility for disciplinary problems of their youngsters. This course is, then, again focused on a particular problem area of Navajo people.

Teaching strategies: In addition to the techniques listed above, parent advisors will play an immediate role in the classroom, as they discuss Navajo aspects of familial conduct.

Law and the Community. In earlier days, Navajo people had special rules for dealing with the chance encounters that lead to injuries by or of fellow tribal members who were not their relatives. These rules of compensation are the common analog of private remedies in tort and criminal procedure as it is implemented through the tribal courts of today. From three points of reference, the third subject will deal with the problem of obtaining justice in the tribal courts in cases where personal injury or property damage has occurred.

(1) Getting relief: The evolution of the court system on the reservation emphasized public sanction and not ways that the court could secure private damages for people with problems. Only recently has representation in tribal court for private actions become available. Confusion about bow the court can be used, and, especially, when the court will help individuals and when it will act on behalf of the tribe to punish wrongdoers is still widespread among adults and young people.

With a focus upon property damage and personal injuries, the first part of the course will explain how legal institutions relate to present-day needs for problem solving outside of the family and to traditional methods of problem solving. The objective will be to prepare students to help their parents and themselves obtain help they want from courts; be that help damages, injunctions, or even criminal sanctions against people who mistreat them and their property.

(2) The rights of defendants: The second objective will be to explain what students can do if arrested or served with a civil process in the tribal or state courts.

(3) The rights of students: The third objective is to focus on the rights and responsibilities of students in schools. This will allow students to act out situations that are of immediate concern to them.

Teaching, strategies: The most difficult concepts of Anglo-American tradition--negligence, criminal intent, rights against self-incrimination—have been incorporated into the tribal court system. Yet, to the extent that they are not interpreted through the perspective of traditional means of "righting injuries," they bar the student or his parent from securing justice in the tribal court.

The role of participants in the judicial process and the meaning of these terms in cases will be explored through role playing and the case book approach.

It is the decision of our staff to forego the common "introduction to law" course that explains how laws are made and applied by concentrating on projects that allow students to make their own rules of conduct in their own institution, the high school. Therefore, the process of law making and enforcement will be contained in a project whereby the students draft and present to the community school board a code of student behavior. As they draft this code, the primary issues of due procedural rights and constitutional guarantees will be given immediate relevance to them.

Preparatory stage: The initial work of the legal staff will be to engage in collection of field data for the instructional material. With the Navajo legal specialist, the consulting attorney will:

(1) Bring together existing research in law and social sciences on relevant traditional definitions and dispute resolving mechanisms, used in the disposition and control of property. The selection of property, its use, disposition and control as the primary focus of field work into Navajo law ways for the legal education course is based upon its centrality in Navajo religion, linguistics, social organization, even as they have been influenced by white institutions and rearrangements. Property relationships with family members (including sexual rights in the traditional view), other tribal members, and outsiders in the market place fix a point at which the implications of variable systems of law affect Navajos of traditional or modern persuasions in their day-to-day affairs.

(2) Develop methodological tools that will be utilized by members of the law team to determine accurately definitions and norms held relevant by Navajo people, particularly by Ramah Navajos.

(3) Interview community leadership and legal service personnel with experience in the Ramah area to learn of specific cases of disputes in their recollection that illustrate the existence, conflicts, or coordination of Navajo law ways and formal law.

(4) Review tribal court records to discover actual cases to utilize within the high school curricula so that the method of instruction will emphasize the problem case or case method approach.

Timetable for field study, and who works on it: Participants in the preliminary stage of two months duration will be the consulting attorney and the Navajo legal specialist. The curriculum development specialist will help to tailor the field study results to the immediate needs of the classroom. The combination of field research, interviews with those active in dispute resolution, and review of extant data on Navajo law ways will lead to a second stage.

In the second stage, the material gathered on Navajo law ways will be combined with basic material gathered from common law. This will include, depending on the course in preparation, practical presentations on the law that guides many day-to-day transactions or the procedures followed once a dispute is placed into the hands of the Navajo or Anglo practitioner. Specific materials that will be prepared include:

(1) A course text that will utilize the case method, setting forth disputes and commenting on how the parties to the disputes defined the problem and resolved it.

(2) Dramatizations which will include participation in "moot court" presentations in both formal and in customary legal contexts. Preparation for this stage of learning will take place after the class has had an opportunity to view trial or customary dispute resolution procedure, and after lectures on procedure, evidence, and the like. It will be included in the training manual for teachers.

(3) Finally, the Navajo legal specialist and the Navajo Ianguage specialist will develop a Navajo legal dictionary to be used as a teaching supplement with the words and terms that are found most difficult to comprehend as the material is used in the classroom.

The timetable for this work is the following two months, with revisions occurring constantly as the material is evaluated in the classroom during the next term.

The use of outside resources are published and unpublished anthropological material, used in forming the basis for the comparative legal approach after it has been reviewed and criticized by lay advocates in the DNA legal services program; and tribal judges, prosecutors, and other legal officers familiar with Navajo disputes, who will be interviewed during the field work. Some of these authority figures will be asked to discuss their jobs and the workings of the institutions during the school year.

Basis on which revision will take place and priorities will be set: Comprehension of legal ideas that are learned during engagement in the teaching process of dispute resolution will be evaluated periodically in taped seminar settings with groups of five students and the consulting attorney and Navajo legal specialist. Class interest in course priorities will also be tapped in this manner.

In these seminars, the students will be asked to criticize classroom procedure directly. Their comprehension of Anglo-American legal terms when used in the Navajo language will be reviewed by the Navajo legal specialist. Their progress in understanding how to cope with disputes in each subject area will be reviewed through the discussion of cases as they are asked to give suggestions on how they might be resolved. Tapes and individual comprehension will be rated as the period of instruction progresses.

Parents will also be asked to criticize the course content and set priorities within the broad categories outlined above at the beginning of evaluation and periodically thereafter.

Staff development: The staff development that will take place will involve three distinct phases: (1) Training of the legal specialist in field study techniques to develop material for use in the classroom; (2) Training of Navajo legal specialists to give appropriate presentations in the classroom and to relate the teaching strategy to the open classroom; and (3) Training of parent-helpers to assist in classroom presentations.