While spring break for many students means a relaxing respite from classes, a group of sixteen American University Washington College of Law (AUWCL) students opted to use the break to instead provide pro bono legal services to the underserved community in Navajo Nation.
Action for Human Rights (AHR), a student group at AUWCL, partnered with government agencies, judicial courts, attorney’s offices, and non-profit organizations to place students in various positions within the Prosecutor’s Office, Window Rock Judicial Court, Navajo Tax Commission, Public Defenders Office, and the DNA Legal Services, among others.
The Diné (Navajo) peoples may be considered successful compared to other tribes in maintaining their sovereignty and returning to their sacred lands. Navajo people, however, continue to face hardships Americans have long forgotten. Unlike most Native American tribes, the Navajos won their fight against the U.S. government to return to their native region after their forced relocation to Bosque Redondo at Fort Sumner, New Mexico. Spanning about 27,000 miles across Arizona, New Mexico, and Utah, the Navajo Nation is the largest Indian reservation in the U.S., and it features some of the most compelling desert landscapes in North America, including Monument Valley, Antelope Canyon, and Canyon De Chelly. Further, Navajo Nation has one of the most involved tribal governments, with the Navajo Nation Council as its legislative branch; a complete legal code; and district courts and a Supreme Court, which functions as the appellate court. The Diné people do not utilize a common law system, instead practicing fundamental law, which is based on the laws of nature stemming from the tribe’s historic practices.
DNA PEOPLE’S LEGAL SERVICES—by Angela Chen
State law ends at the border of Navajo Nation, as do many of the privileges that most Americans take for granted. After crossing the New Mexico Navajo Nation border, the high poverty rate soon became apparent. Stray horses wandered next to the minimally maintained highway. Phone and power lines disappeared from the landscape. Besides the fifty percent unemployment and high poverty rate, nearly forty percent of households lack electricity and running water. Natural gas service in homes is rare, and twenty percent of households lack kitchen facilities. Only about half of Navajos living on the reservation completed high school, and less than ten percent of Navajos have college degrees.
During the alternative break, I worked with two other students at the Dinébe’iiná Náhiiłna be Agha’diit’ahii (DNA) People’s Legal Services, a non-profit community legal services provider. The week-long experience was an immersion into both the legal and social issues that Navajos face. With few resources or community services available in Navajo Nation, Diné people turn to DNA for assistance with non-legal issues such as debt resolution and other financial assistance. During the brief time we were there, we encountered cases regarding employment discrimination, consumer fraud, child custody, domestic violence, and public benefits claims.
Diné people experience financial and social disadvantages due to the systematic discrimination present within the law. For example, Diné people largely have access to inadequate housing facilities in part as a result of the legal difficulties Diné people face when trying to secure real property since they cannot own land on the reservation. During an interview for a housing benefits claim, a client explained how her mother never received the house she was entitled to through a government program because the permit to build the house was attached to a specific lot. Although the lot was initially granted to her mother, it was then granted to another individual when the reservation’s borders were redrawn about fifteen years ago. Anywhere else in the United States, losing land in this way would likely constitute an unconstitutional taking of property. But for the Diné, since they are unable to own land, this is a common occurrence.
Unfortunately, many client interviews end with an attorney promising only to place a few calls. Resources in Navajo Nation are limited to begin with, but resources are even more limited for the non-profits that provide free services to those in need. In many ways, the vastness of the reservation contributes to the legal services shortage in Navajo Nation. The distance makes it difficult for Diné people to access services, but the isolation also makes it difficult for the individuals who provide the services to stay and work on the reservation. Our group was only one in a long line of student groups who went to Navajo Nation during spring break to provide pro bono work. Even though the work of AUWCL students barely made a dent in the caseload at DNA, our efforts, combined with the work of all pro bono students over a few week period, represent one step toward addressing the service gap that stems from a history of discriminatory legal practices.
My experience working for the Navajo Nation Chief Prosecutor’s Office was one of the most profound experiences of my legal education. Along with one other intern, I worked for the Navajo Nation Chief Prosecutor Bernadine Martin. Ms. Martin is a passionate attorney who has worked in this capacity for the last five years. She emphasized that the unavailability of financial resources is a common theme underlying all of the issues in Navajo Nation, which prevents effective governance of the region. For example, there are not enough prisons to hold the perpetrators of crimes, nor is there enough money to fund prison staff to guard the prisoners. As a result, the maximum jail sentence a person can serve in Navajo Nation is one year. Cases that require more severe sentences are transferred to federal courts. At present, there are six correctional facilities for adults and two for juvenile offenders. Recently, the Navajo government built a new jail, but because the government cannot fund the staff, the prison is not being used. Additionally, many attorneys in Navajo Nation lack the basic manpower that is generally taken for granted by attorneys in common law states. For example, Ms. Martin lacked any full-time interns, relying primarily on interns who volunteered on Alternative Breaks to help her with cases.
One of the key differences I observed between fundamental law practiced in Navajo Nation and common law is the presence of a defense lawyer in criminal trials. In common law, a defendant is automatically guaranteed a defense lawyer unless the defendant requests to represent himself on a pro se basis, whereas in fundamental law a defendant is not automatically guaranteed a defense lawyer. Instead, a defendant must request a lawyer and prove indigent status in order to qualify for a government appointed lawyer. In the same vein, in fundamental law, jury members are not required to be present in criminal cases to decide questions of fact. Rather, the judge decides both questions of fact and law. If a defendant requests a jury, that request cannot be denied; however, because of scant financial resources, juries are not automatically provided in criminal trials.
To expose the interns to practical application of Navajo fundamental law, Ms. Martin provided us with the opportunity to observe court proceedings at the Crownpoint Court. At the court, the majority of the offenses were alcohol related, thus illustrating the gravity of alcohol related issues that the Diné people face. One such trial I observed involved a police officer who allegedly battered his common-law wife while intoxicated. Although the couple had lived together for less than a year, Navajo law provides fairly lax standards for the establishment of a common law marriage, so the couple was considered as a married couple for purposes of the proceeding. Thus, the police officer was charged with battery of a family member, which carries a much more severe sentence than battery.
In the instant case, the defendant had attempted to secure a lawyer by seeking multiple continuances that spanned over a year. Although the continuances were initially granted, because he failed to make any effort to obtain a lawyer, the defendant’s final appeal for continuance was denied, and he was forced to represent himself as a pro se defendant. The judge ultimately ruled in favor of the victim while sternly lecturing both parties to refrain from straying from the Navajo way of life.
The impact of the lack of available funding in Navajo Nation was highlighted in the latter part of the week when we accompanied Ms. Martin to Tuba City to attend a hearing on a case of first impression regarding the lack of appropriate prison facilities available for a mentally ill defendant. During the hearing, the parties discussed whether the prisons, currently unequipped to address the needs of mentally ill persons, could provide a single room for the defendant, or whether the defendant could instead be held in a hospital. Because the attorneys had not spoken to the hospital about whether it was willing to provide a private room for the mentally ill defendant, the judge decided to reconvene in a month after the hospital’s response.
Ms. Martin told us that one of her biggest frustrations is the high number of serious criminal cases in Navajo Nation that the U.S. government declines to address. For major crimes such as sexual assault and murder, the U.S. has concurrent jurisdiction that allows investigation by the Federal Bureau of Investigation (FBI) and prosecution by the U.S. Attorney’s office. However, for reasons relating to inadmissibility of evidence, witness issues, and because tribal cases are not considered a priority, the U.S. Attorney’s Office has refused to prosecute fifty percent of these serious crimes. Further aggravating the issue, because of a lack of communication between the U.S. Attorney’s office and Navajo Nation, the decision to forego prosecution by the U.S. Attorney’s office often does not reach Navajo Nation until the statute of limitations to prosecute under Navajo law has already expired. As a result, there are many criminals on the reservations with functional impunity who are either never punished or receive only light punishments.
Despite the various issues the Diné people face, it was clear to me that they continue to fight against these issues with an unwavering spirit. My internship with the Chief Prosecutor’s office was truly memorable. Though I only worked in Navajo Nation for a week, I learned a great deal about the Court systems, the people, and the culture. The Diné people are a resilient people who, despite their adversities, continue to grow and prosper.