Academic journal article South Dakota Law Review

"Children Are Sacred": Applying Navajo (Dine) Fundamental Law to Strengthen Juvenile Justice

Academic journal article South Dakota Law Review

"Children Are Sacred": Applying Navajo (Dine) Fundamental Law to Strengthen Juvenile Justice

Article excerpt

I. INTRODUCTION

Traditional Navajo teaching holds that "our children occupy a space in Navajo culture that can best be described as holy or sacred." (1) So important is this principle that the courts of the Navajo Nation ("Nation") claim authority to assert jurisdiction over all Navajo children regardless of where they reside (2). The Nation claims more than 300,000 enrolled tribal citizens, about half of whom live on the Navajo Indian Reservation ("Reservation")--the largest tribal homeland in the country, whose territorial boundaries extend into three states and encompass 27,425 square miles or the size of West Virginia. (3)

Dine (literally "The People," as Navajos call themselves) residing on the Reservation tend to be younger, on average, than nearly all other ethnic or racial groups in the United States. The median age of a Navajo person living on the Reservation is just 24 years old, compared with the U.S. national average of 37.9. (4) A third of all Reservation Navajos are 18 or younger. (5) Navajo households are also comparatively larger: the average Dine family on the Reservation consists of 4.36 persons, versus 2.58 per household nationally. (6)

In addition to comparatively higher birthrates on the Reservation, members of the same extended family are more likely to live together under the same roof. Navajo households are three times more likely to be multigenerational--that is, include at least one child plus one or more grandparents--than the average for such households in Arizona. (7) The number of children under the age of 18 on the Reservation living with one or more grandparents is four times higher than in Arizona, and households led by single mothers more than twice as common. (8) Yet despite the comparatively larger size of Dine families living together, combined median household income is less than one-half that of comparable households in Arizona off-Reservation. (9)

This Article focuses on Navajo children and the law--and specifically the application of Navajo Fundamental Law--or Dine bi bee hazaanii in the Navajo language--in juvenile justice matters such as child protection and children in need of supervision ("CHINS") proceedings, dependency, termination of parental rights, and other family settings. The Navajo term for law, bee hazaanii, refers to shared norms for living a healthy and meaningful life, which traditional Navajos believe are absolute, immutable, and have existed since the beginning of time. (10) According to this belief, bee hazaanii originates not from human beings--judges, lawyers or legislators--but has been given and entrusted to the Dine by divine beings, called Holy People. In this sense, bee hazaanii is loosely akin to the Anglo-American concept of Natural Law. (11)

Natural Law has taken a backseat in modern U.S. jurisprudence and, when discussed at all, can be controversial. (12) In contrast, Navajo Nation judges and justices frequently invoke Dine Fundamental Law and apply it in their decisions. The Navajo Supreme Court has explained that Dine bi bee hazaanii "actually refers to a higher law. It means something which is 'way at the top'; something written in stone so to speak; something which is absolutely there; and, something like the Anglo concept of natural law. (13) Nor is the practical application of Dine Fundamental Law limited to the Navajo Judicial Branch. In 2002, the Navajo Nation Council codified Dine bi bee hazaanii in Article I of the Navajo Nation Code ("Code"). (14) The Article I amendments to the Code were a direct result of the Navajo Common Law Project, a remarkable initiative undertaken by the leaders of the three branches of the Nation's government--Council Speaker Edward T. Begay, Navajo Nation President Kelsey A. Begaye, and Robert Yazzie, Chief Justice Emeritus of the Navajo Supreme Court and Chair of the Nation's Judicial Conduct Commission--to directly integrate Dine bi bee hazaanii into every aspect of Navajo government in order to preserve Navajo culture and sovereignty. …

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