The Navajo Legal Ceremony: Peacemaking
When I give lectures at conferences on Navajo common law, I frequently receive questions about our peacemaking program. What is it? How does it work? And can it be used by people who are non-Navajo? At the outset, I’ll make it known for those who are unfamiliar that peacemaking is a method that is used to resolve disputes between people. If you read articles on Navajo peacemaking, you’ll come to see that there is no magic to it. The concept is a very simple, yet very effective, way to resolve disputes among people, especially in small communities like Indian reservations.
I think it is safe for me to say that Indigenous peoples all around the world have similar ways of thinking. They think of things in terms of peace, balance, and harmony. When things get thrown out of balance, something must be done to shift them back to their original harmonious state. This thought process permeates through every aspect of Indigenous peoples’ lives and shapes their world view. It is reflected in their approach to medicine, philosophy, education, law, governance, and even their approach to resolving disputes within their communities. For dispute resolution, some Indigenous peoples use talking circles, some use peacemaking, others use ceremonies. Regardless of the method, the framework that underlies the system is similar and the end goal is the same—to restore harmony to a community by repairing relationships.
In Navajo dispute resolution, i.e. peacemaking (hózhǫǫji naat’áanii), we call restoring balance and repairing relationships among parties: hózhǫ nahasdłii’. Restoring balance and repairing relationships are achieved by gathering all parties who have an interest in the dispute, including the perpetrator, the victim, family members, friends, elders, medicine people, teachers, mentors etc. Of the interested parties, one is appointed as a peacemaker. The peacemaker is responsible for making sure that everyone gets an opportunity to speak, no one is interrupted, parties speak freely, and emotions flow but don’t run wild.
The concept is simple: people come together, sit at a table, and talk about what happened to cause disharmony. In Navajo, it is called nabik’íyáti’, which means talking things out. The participants are k’éí, meaning family or relatives. Navajo Nation, despite being large in land and population, is a tight, close-knit community, where the people are linked together by clans, marriages, and chapters. We are all relatives. Indigenous peoples everywhere share that view; the Dakotas know it as Mitakuye Oyasin.
Accordingly, we believe that a dispute between two people is a dispute between two relatives and thus affects not only the disputing parties, but also their family, friends, and the community at large. A dispute between two Navajo people sends ripples throughout the community. Therefore, the community has an interest in ensuring everyone, including themselves, live and interact according to customs and traditions that promote hózhǫ, or harmony. In Navajo, we call this community bond and the rules that govern it k’é.
Navajo peacemaking, then, is premised on three concepts: k’éí, k’é, and hózhǫ. In peacemaking sessions, there are no rules of procedure, evidence, lawyers, or judges. Peacemaking is about allowing the interested parties to resolve their own disputes because they are in a better position to do so, rather than lawyers and judges who may not be from the same community or privy to the issues.
Sometimes, as the parties talk things out, they come to find that the issues run deeper than what they expected. This is not uncommon. For instance, a case which seems to be about simple assault and battery between two parties may really boil down to alcohol or drug abuse. That substance abuse may be the result of PTSD, trauma, or childhood abuse. The problems are multilayered, interconnected, and a lot of times inter-generational.
The main goal of peacemaking is to pull out all the issues, confront them together as a community, come up with mutually agreed upon solutions to repair broken relationships, and plan for treatment of the injured parties. Unlike the adversarial system, i.e. court system, it is very much possible to see injury among both disputing parties regardless of whether the matter at hand is civil or criminal in nature.
To illustrate, a lot of cases in tribal court involve assault or battery inflicted on someone by a family member who is intoxicated. The victim is the injured party, and the defendant or perpetrator is viewed negatively as a violent troublemaker who likes to drink. They are not viewed as family members but more as parties in a criminal case—defendant and victim. However, in peacemaking, they are relatives, and the perpetrator is also viewed as an injured party. His or her injury may be in the form of trauma caused by years of childhood abuse. Their coping mechanism is drinking which causes them to act out in a violent manner.
Peacemaking is usually a very emotional process. Tears are shed, tempers flare, people are scolded, stories are told, wisdom is passed on, and hugs are given out. People are encouraged to speak their mind and let their emotions go. However, it is the job of the peacemaker to control the session, the parties, and make sure the process does not escalate to physical violence.
Peacemaking sessions can be instigated one of two ways: (1) on a party’s own accord or (2) court referral. All matters, civil and criminal, can be sent to peacemaking. It is less costly than going through the court system, and for traditional folks, it makes more sense. There are no winners or losers in peacemaking like there are in the adversarial system. There are no rules to suppress evidence or testimony. Moreover, there are no formal procedures that you would see in a court hearing or a trial.
In a nutshell, peacemaking is premised on a universal concept that exists among all people regardless of race or religion. The concept appeals to their basic human nature, and therefore understanding it requires only the use of common sense: when you have a dispute with someone, talk it out. Say what you need to and shed the emotion. Uproot the problem and keep pulling until all the issues come to light. Family and friends will be with you during the process to pick you up when you break down and protect you when things get challenging or scary.
This is the same process you see occur in a lot of households at the dinner table among family members who fight and quarrel. It’s a process of healing that is older, and perhaps more effective, than the court system. To answer a question that gets frequently asked about whether peacemaking can be used by other peoples who are non-indigenous. The answer is a resounding “Yes.” Most non-indigenous peoples have probably already done it in one form or another.
This is not to say that peacemaking works 100% of the time. A lot of people would rather go through the court system and a lot of them do. Nobody is forced to go into peacemaking. Sometimes the damage is so bad and things are beyond repair between the parties. You see this mostly in criminal cases involving major crimes and depraved behavior. In those situations, protecting the community through prosecution in a court of law and incarceration are better methods.
It would be foolish to think that every person, particularly criminals who commit heinous crimes without remorse, can be reformed. And so, locking them away and keeping them out of the community for as long as possible is also in conformance with our notion of maintaining peace and harmony within the community. After all, banishment and the death penalty were punishments that were also used in many Indigenous nations. Of course, they were rare punishments reserved only for high crimes motivated by abhorrent behavior that jeopardized the community at large.
In the end, the combination of a formal court system and peacemaking has offered many benefits to the Navajo Nation not just in terms of justice but also nation building. It shows that there are ways to effectively combine two very different systems, western and indigenous, and build something that the people know and respect. Is it perfect? No. No system is perfect, but the goal is not to build a perfect system; it’s to build a better system for the people. The starting point? Language, custom, and tradition. Don’t think you have it? Think again and look deeper within yourselves. That’s how peacemaking came about.