(c) 2000 The
Evolving the Hopi Common Law
BIO: Pat Sekaquaptewa (Hopi) is the Associate
Director of the Tribal Law & Policy Institute, a non-profit corporation
committed to furthering the legal education and justice needs of American
Indian and Alaska Native tribes. Ms. Sekaquaptewa is also the Director and
instructor for the Hopi Appellate Project at Boalt Hall School of Law at the
HIGHLIGHT: But will you, friend, explain to me that which I cannot understand? Why do the white people want to stop our dances and our songs? Why do they trouble us? Why do they interfere with what can harm them not? What ill do we do any white man when we dance?
Lololomai, white men do not understand your dances or your songs. They do not even know one word of your language. When I have written your songs, I will write English words as well as Hopi, that white men may know of what you sing. When they understand, they will perhaps no longer want to stop your dances and your songs. To you, Lololomai, the Hopi chief, will I give the Hopi songs when they are written. You will keep them for your people with the other sacred things that are your trust. Then in the days to come the younger Hopis will read, and so the songs never will be forgotten.
-A recounting of Natalie Curtis's conversation with Chief Lololomai in her work, The Indians' Book (1907).
[*761] I. OVERVIEW
It is difficult in both tribal and mainstream American communities to get people to understand or become interested about the evolution of the community's judge-made law. However, as many judges and lawyers will attest, judge made law-the legal standards adopted in the written opinions of a court-are the key to fitting general legislation to the realities of the community. The standards adopted by judges in their opinions integrate and formalize the previously unwritten values of the community and are recorded as precedent. A judicial system with well fleshed out judge [*762] made law, or common law, is one that promotes fairness, consistency, and a respect for local values.
In tribal communities, development of the common law is the key to ensuring tribal ownership over once imposed justice systems and often imported foreign legal standards. The common law process should be used to weigh when, if, and under what circumstances, foreign laws (state, federal, and/or other tribal) should be imported into the tribal jurisdiction. The common law process may also be used to identify and formalize custom and tradition in court process and in the adoption of substantive legal standards.
The dedicated judges of the Hopi Tribal Courts recognize the crucial function of the Hopi common law, and are committed to evolving it to ensure a tight fit between Western justice models and persisting Hopi ways. This paper outlines the efforts of the Hopi Tribal Courts in this regard. Recent cases have given rise to important discussions concerning the nature of the union of the Hopi villages, and the sorting of jurisdiction between the central Tribal Council and these villages. Recent cases have given rise to discussions concerning the formal application of Hopi values, including the application of generally accepted customs and, where necessary, finding relevant village customs and applying them in a particular case. Finally, important issues of fair process, particularly in the context of tribal court enforcement of village decisions, continue to be raised.
II. BACKGROUND INFORMATION ON THE HOPI TRIBE & VILLAGES n1
Hopis are one of
the oldest native cultures in
The Hopi Tribe today is comprised of twelve villages. Each of the older Hopi villages is made up of a hierarchy of clans n5 based on their order of arrival to the area. According to village mythologies, Masau'u, a Hopi deity, holds the original claim to all Hopi lands. It was Masau'u who granted the leader of the original clan control or stewardship over village lands. n6 Various plots were later allotted to clans as they arrived to the area in exchange for specific (often ceremonial) services. Modern villages and clan leaders trace their authority and rights in land to these original sources. Bear clan tends [*763] to be regarded as the first and highest ranking clan in a number of the villages with the male head of the clan serving as the village chief or "Kikmongwi".
Traditional village government is a merger of clans, clan officers, religious societies and priesthoods. n7 Many higher-ranking clans "own" religious societies, which are responsible for performing specific ceremonies or services for the villages. Although clan members fill the leadership positions within these societies, minor offices, and general membership in a society is usually open to any villager regardless of clan membership.
Beneath the clan hierarchy and village governance, lays the internal governance structure of clans. A Hopi clan is best described as a group of Hopi families, the females of which derive their clan through their mother's line. The female head of the clan is often the oldest living female member of the clan. The male head of the clan is likely to be her maternal uncle, her brother, or her son - but never her husband. In the typical traditional household, daughters and their families remain in her mother's home for life. n8
Female clan heads "own" the central clan homes and the male clan heads oversee a clan's ceremonial responsibilities to the village. n9 Traditionally, each clan had at least one "wuya" (a mask, figurine, or fetish referring to the clan ancestor or ancient). n10 The wuya represents the heart of the clan and the ancestor or ancient that it refers to often plays a central role in the myths explaining the origin of the clan. Rightful possession of the wuya provides the authority for the holding of a society office and the exercise of certain ceremonies. Where the wuya takes the form of a physical object, it is placed in the central clan house.
The female and male clan heads are often responsible, directly or indirectly for determining clan member land use rights. Two types of possible clan land holdings have been identified: 1) land allotted a given clan upon initial arrival to the village in ancient times; and 2) land reserved to the village chief who then allotted some of it to clans and officers of important ceremonies. In the former case, the female and male clan heads may have the final say with respect to clan member rights in land. In the latter case, it appears that plots were held only during terms of active ceremonial service and then reverted to the Kikmongwi. n11
Within every clan household the traditional disciplinarian and counselor is the maternal uncle or "Taha". Young clansmen look up to their Taha as he will select and train them for ceremonial offices. The maternal uncle is also responsible for the practical care of his sister's children and for supervising their upbringing. He is also responsible for narrating clan legends and for dispensing advise when problems arise.
Contact with American settlers and the intrusions of the American government radically restructured traditional village institutions in the late 1800s and early 1900s. During this period, Hopi families were enticed or coerced into sending their children away to federal government boarding schools. Parents that resisted were arrested and shipped to jail, prisons, or distant boarding schools. The children of these parents were kept for years in boarding schools and were not allowed to return home because government officials feared that they would not return to school. In addition, the federal government [*764] sought to break up the village and clan land holding systems and assign land allotments to individual Hopis below the mesa villages. However, due to heavy resistance from the "hostile" Hopis of some villages, the allotment plan was ultimately abandoned. Cooperation or non-cooperation by different groups of Hopis with the American government polarized village politics, causing clans and societies to split and ultimately resulted in the break-up of one of the oldest and largest villages. n12
By 1934, the federal government's boarding schools, Indian agents, police, judge and jail were well established in Hopi Country-in addition to a number of missionaries and mission schools. Hopis in the 1920s and 1930s suffered the indignities of boarding school life, including punishments for speaking their language and for participating in their most basic ceremonies. Hopis were forcibly "sheep-dipped" or deloused in their own villages, and were pressured to sell their livestock at a reduced rate to the government. The federal government also limited the Hopis exclusive use of its range lands to one fourth of the area designated in the 1882 Executive Order. These policies and practices led to public outcry from Hopis to their many white friends (scientists, missionaries, artists and others) who in turn put pressure on Congress to change its Indian policy.
The most significant American intrusions of this era proved to be the government boarding schools. Many Hopi children and their more obstinate parents were taken away from the villages for years at a time. This significantly disrupted the civic, religious and economic life of the villages and replaced the traditional education process with Western school-based instruction. When these Hopis returned to the villages years later, they were uninitiated, lacking years worth of training in the clan, society, and work-skills of the villages. However, boarding school was only a precursor to something far more intrusive. Representative government was about to be imposed on the Hopi villages in the form of the Indian Reorganization Act and the establishment of the Hopi Tribal Council. This imposition created a double-layering of government at Hopi which significantly diminished the power of local village leaders. This double-layering persists today.
III. BACKGROUND ON THE HOPI TRIBAL GOVERNMENT AND CONSTITUTION
In 1934, the United States Congress passed the Indian Reorganization Act (also known as the Wheeler-Howard Act) which provided for the federal recognition of tribal councils and corporations upon the creation of such bodies, and the adoption of tribal constitutions or charters by a majority vote of tribal members. n13 Immediately upon passage of the Act, the Commissioner of Indian Affairs, John Collier, sent his representative to Hopi country to convince the villages to establish a central Hopi Tribal Council and to adopt a tribal constitution. A number of holdover federal government employees, those with financial interests in reservation trading posts, among others, opposed the policies and plans under the Act, and sowed doubts about the plan among the Hopi leadership. Traditional leaders opposed the plan, as it would jeopardize already established village government with its complex clan and religious organization. In 1936, [*765] John Collier, the Commissioner of Indian Affairs, sent Oliver LaFarge to Hopi to try to convince the villages of the desirability of establishing a tribal council. When a final vote on the tribal constitution was taken in 1936, the tally was 651 in favor and 104 opposed. Based on this report, the Hopi Constitution and Tribal Council were formally recognized as adopted by the Hopi people. n14
Since 1936, the legitimacy of the Hopi Constitution and Council has been questioned, first by the leadership and membership of traditional Hopi villages which refused to send representatives to tribal council, and later by activists who argue that the council was established as a puppet of the federal government in order to gain access to natural resource reserves on Hopi lands. Despite the controversy surrounding the origins of the constitution and council, the modern Hopi electorate has revised and re-adopted the Hopi Constitution three times since 1936, legitimizing the constitutionally defined powers and authority of the Hopi Tribal Council. n15 Today Hopi people look to the tribal constitution, the tribal council, and the tribal courts to lobby for the needs of the villages and Hopi people, to provide basic governmental services to the Hopi people, and to resolve disputes.
The Hopi Constitution currently operates, and is best conceived, as a contract between the specified, self-governing villages in 1936. n16 It embodies a necessary compromise by these once independent villages:
This Constitution . . . is
adopted by the self-governing Hopi and
The Hopi Constitution effectively establishes only one branch of government - the Hopi Tribal Council. The Chairman and Vice-Chairman of the Tribe sit as Chairman and Vice-Chairman of the Council, as opposed to constituting an independent executive branch. Under the Constitution, each of the recognized villages sends a number of representatives, based on village population, to sit on the Tribal Council. n18 Each village decides how to choose its representatives, but the representatives of traditional villages must be certified by the village Kikmongwi in order to sit on the Tribal Council. n19 The Constitution also reserves village jurisdiction over family disputes and relations, the inheritance of property of village members, and the assignment of farming land. n20
The Council has the power to represent the Tribe in all matters and dealings with federal, state, and local governments, and other tribes; employ lawyers; prevent the sale or encumbrance of tribal lands and property; advise federal agencies and Congress regarding appropriations and projects benefiting the Tribe; raise funds and to use such funds for the welfare of the Tribe; make ordinances protecting tribal peace and welfare, and establish courts to settle disputes and to punish violations of tribal ordinances; act as a court to settle claims between villages, remove or exclude non-members whose presence [*766] is harmful to the Tribe; regulate the activities of voluntary associations; protect the arts, crafts, traditions and ceremonies of the Tribe; establish Council committees, and; adopt resolutions for conducting of Council business.
A. About the Trial Court(s)
The Hopi Tribal
Courts were established by the Tribal Council in 1972. n21 The courts do not have a separate
constitutional dedication of powers from Tribal Council at this time. n22 The trial court is housed in a modern
courthouse/police headquarters complex on the Hopi reservation near
The trial court has general authority, guided by the Indian Civil Rights Act, to decide nearly every type of case, subject to the limitations of the Hopi Constitution, By-laws, and tribal ordinances. n23 The trial court handles civil matters concerning such issues as marital disputes, commercial contracts, torts, employment rights, property disputes and probate matters. The Tribe has also established a Hopi Children's Court with limited jurisdiction over minors who are shown to be dependent, minors who are in need of emergency care, and minors who are shown to be delinquent. n24
The trial and Children's Court's civil jurisdiction extends to both Indian and non-Indian litigants. n25 The criminal jurisdiction of the trial court, however, is limited to Indians who commit offenses on the Hopi reservation. n26 The criminal offenses include what are generally considered to be misdemeanor crimes and are listed in Ordinance 21. n27 Indians who are not members of the Hopi Tribe are also subject to the jurisdiction of the Hopi Courts. n28 However, the trial court does not exercise criminal jurisdiction over non-Indians who commit crimes on the Hopi Reservation. Non-Indians, if arrested, are taken before a state or federal court. The trial court's authority to impose punishment is limited. The maximum sentence the trial court can impose for each criminal conviction is one year in jail or a fine of $ 5000 or both. n29 However, the trial court can require that multiple sentences be served consecutively beyond this limit.
B. About the Appellate Court
Appellate Court was also established by Ordinance 21 in 1972. n30 The Appellate Court is comprised of a
three-judge panel of attorneys, which meets to hear oral arguments and
deliberates two to three times per year at the Hopi court facility near
The Hopi Appellate Court's jurisdiction and mandate extend to the review of final trial court civil decisions, n33 including the review of the trial court certification of decisions made by the nine, constitutionally recognized Hopi villages. The Appellate Court also has jurisdiction to review trial court criminal orders exceeding fifty dollars in fines or thirty days in jail. n34 Finally, the Appellate Court is authorized to issue advisory opinions [*767] given certified questions of law from tribal agencies or departments or other judicial forums (including village forums). n35
Constitution permits a village to adopt its own constitution. n36 Only one village has done so: the
In practice, most villages are "traditional," meaning that they have not adopted local constitutions. However, these traditional villages have administrative officers such as village governors or community service administrators that handle the day to day business and service needs of a village. Additionally, most villages also have a village board of directors that holds meetings and votes on the passage of village resolutions. These positions may be filled at the pleasure of the Kikimongwi or by popular vote.
IV. THE MULTIPLE DISPUTE RESOLUTION AUTHORITIES AT HOPI
As described above the Hopi Tribe was created by a union of once autonomous villages which delegated powers to a central tribal council. This council in turn created a tribal court system. This complex series of delegations has created troubling legal voids with respect to original and subject matter jurisdiction as between the tribal council, the villages, and the tribal courts. These legal voids are being addressed through the tribal common law-the tribe's judge made law-on a case by case basis. The issues raised in these cases give rise to important discussions concerning the nature of the union of the villages, the sorting of jurisdiction between the central tribal council and these villages, and the constitutional distribution of powers between the tribal legislative and judicial branches.
The debate among the different Hopi government and village authorities over who gets to decide disputes invariably turns on constitutional interpretation. More specifically, the debate turns on whether one authority has exclusive subject matter jurisdiction, or there is concurrent subject matter jurisdiction.
Under the Hopi
Constitution the Hopi Tribal Council may sit to hear inter-village land
disputes. n37 Shortly after the
establishment of the Hopi court system, parties often argued that the tribal
council had exclusive jurisdiction under this provision to decide disputes.
Whether the tribal courts had concurrent jurisdiction to hear an inter-village
land dispute was a question of first impression in Hopi Indian Tribe v. Hopi
Tribal Court. n38 In this case, the
Hopi Tribal Council undertook to build a civic center on lands claimed by the
Sand Clan of the
When the Tribe proceeded to prepare the site for construction, a representative of the Oraibi Sand Clan brought a petition for injunctive relief in tribal court. The petitioner argued that construction of the civic center would constitute an illegal taking of private property from individual members of the clan under the Indian Civil Rights Act of 1968 (ICRA). n39 The Hopi Tribe moved to dismiss the petition arguing that the tribal courts lacked jurisdiction to hear the matter. The trial court denied the motion in 1983. The trial court found that the language of Article VIII of the Hopi Constitution, which sets out the procedures by which a Kikmongwi may request the Council to hear an inter-village matter, n40 is permissive rather than mandatory. n41 The Tribe appealed the denial of the motion to dismiss. In 1998, the Appellate Court dismissed the case following the death of the petitioner and the failure of any real party in interest to step forward to further prosecute his claim. Today the trial court's holding finding concurrent jurisdiction in the tribal courts (concurrent with the Hopi Tribal Council) to decide inter-village land disputes stands as the applicable law in the Hopi jurisdiction.
One of the most significant unanswered questions of Hopi constitutional interpretation is whether the villages, when they formed the union, gave up all their governmental powers to the central tribal government, reserving only the delineated powers of Article III, Section 2 to themselves, or whether they retain all pre-existing sovereign powers not dedicated exclusively to the Council under the provisions of the Constitution. In the absence of documented legislative history on this point, the Tribal Council and tribal courts have done their best to sort tribal and village jurisdiction in a principled manner. The typical cases coming before the courts can be divided into three subject matter areas: 1) Matters involving the custody and care of children (abused or neglected children or juvenile delinquency); 2) Disputes involving family relations (paternity, divorce, custody, child support, spousal or child abuse); and 3) Land/Property disputes between individuals, clans, villages, and the Tribe. All three of these areas could conceivably be considered to be reserved to the villages. However, the courts tend to exercise concurrent jurisdiction in those subject matter areas where the Tribal Council has legislated or where a village has "waived" its jurisdiction. Although this solution addresses the immediate subject matter jurisdiction concerns of the tribal courts, it does not address the deeper constitutional questions outlined above. The following is a sampling of legislation and court decisions in each area.
1. Children & Families
The Hopi Tribal Council has enacted at least two ordinances providing the tribal courts with jurisdiction to deal with family matters. The first, the Hopi Children's Code was adopted in 1981 and was last amended in 1997. The second is the Hopi Family Relations Ordinance, which was adopted in 1996.
[*769] Under the Children's Code the Hopi Children's Court exercises jurisdiction to intervene in or to request transfer of state court proceeding involving Hopi children under the Indian Child Welfare Act; over all children declared minors-in-need-of-care where the villages are not handling the matter; over all juvenile offenders; and over the placement of Hopi children. n42 The Children's Code also provides for jurisdiction over adults including persons accused of victimizing a child, or for the purposes of compelling attendance in court or other proceedings involving the child or his care and custody. n43
The Children's Code restates the reserved jurisdiction of the villages to appoint guardians, to adjust family disputes, and to regulate family relations among village members. n44 However, the Code goes further and sets out the procedures and content of notice for notifying the villages so that they may choose to handle the matter or may waive jurisdiction over the matter. n45 If the village does not assume jurisdiction or does not respond to the notice by the deadline, the Children's Court may assume jurisdiction. n46 The Court may also assume jurisdiction in emergency cases. n47
The Hopi Family Relations Ordinance provides the tribal courts with jurisdiction to hear and issue protection orders in independent civil actions: "The court may provide remedies to protect persons within the territorial jurisdiction of the Hopi Tribe to prevent future abusive and violent conduct." n48 This ordinance also reiterates the reserved jurisdiction of the villages and provides for notice and the assumption of tribal court jurisdiction in the absence of a response from the villages. n49 However, the notice requirements are applicable only when both the petitioner and the defendant are members of the same village. n50
What is notable about both the Children's Code and the Family Relations Ordinance is that they provide for notice to the villages with the possible exercise of tribal court concurrent jurisdiction in the absence of a timely response from the village. Such tribal regulation of village jurisdiction is troubling to some as an unconstitutional limitation of village powers. However, others argue that such statutory provisions are necessary in dealing with children and abuse situations - especially given the as yet undeveloped state of village agencies, judicial authorities or bodies and police. An argument can also be made that the legislation is constitutional given that the villages acted through their representatives to Council when such legislation was adopted.
2. Land and Property
Article III, Sections 2 (c) and (d) of the Hopi Constitution reserve the power to regulate the inheritance of property, and to assign farming land, to the recognized villages. n51 Article VII, Section 1, specifies that the assignment of the use of farming land "shall be made by each village according to its established custom, or such rules as it may lay down under a village Constitution." n52 Further, "Unoccupied land beyond the clan village holdings . . . shall be open to the use of any member of the Tribe, under the supervision of the Tribal Council." n53 Finally, "Nothing in this Article shall permit depriving a member of the Tribe of farming land actually occupied and beneficially used by him at the time of the approval of this Constitution." n54
[*770] Under these Constitutional provisions the proper exercise of village jurisdiction turns on whether the land in question is being probated, on whether it is "farming land" versus "land beyond the clan village holdings," or whether the land was "occupied and beneficially used in 1936." These, of course, are questions of fact to be determined in preliminary jurisdiction hearings before the Hopi tribal courts. If the land is being probated, or if the land is "farming land," the court tends to find that it lacks jurisdiction to hear the matter and dismisses the case, instructing the parties to approach the appropriate village to resolve the matter.
The question of whether the tribal courts have concurrent jurisdiction to decide intra-village land disputes over farming land was a question of first impression in Ross v. Sulu. n55 In Ross, the representative of the Tewa Kachina Clan of First Mesa filed a complaint for trespass in tribal court against the assignee of a half-acre of land within the First Mesa Consolidated Villages. The assignment was made to defendant on a Tribal Housing Authority land assignment form, which was signed, by the "Kikmongwi of First Mesa" and the male and female Butterfly-Badger Clan leaders of that village. In 1988, the defendant moved a mobile home onto the land. The complaint sought injunctive relief (removal of the mobile home) and damages, alleging that the land in question lay within the territorial possession of the Tewa Kachina Clan and that absent the clan's consent, defendant was a trespasser. In September of that year, the trial court issued a temporary restraining order and then "remanded the matter for negotiation" between the plaintiff, the defendant, the Tewa village Chief, the Butterfly-Badger clan leader, and the Kikmongwi of First Mesa. The parties were unable to resolve the matter so a trial date was set in tribal court.
In January of 1989, the trial court heard testimony regarding the history of the Tewa people's arrival to the Hopi villages and the Hopi clan's right to use the land. The trial court found that at some point in Hopi history, the Hopi leaders had assigned the land to the Tewa people and that the land in question did indeed belong to the Tewa Kachina Clan. The trial court granted the plaintiff's motion for a directed verdict and found defendant to be committing trespass, enjoining her from maintaining a home on the land. Defendant appealed the matter to the Hopi Appellate Court arguing that the Hopi Constitution required that such disputes be resolved under traditional village procedures, rather than by the tribal courts, and that the assignment made by the Kikmongwi here was in accordance with Article III, Section 3 of the Hopi Constitution (the farming land reservation).
The Hopi Appellate Court vacated the lower court order and held that under the Hopi Constitution, the power to assign farming land was reserved to the "Village of First Mesa" to be undertaken as follows:
With regard to the procedures through which the land is to be assigned by the villages, Article VII, Section 1 of the Hopi Constitution provides that assignment of the use of farming land "shall be made by each village according to its established custom." Hopi villages are free to adopt modern constitutions and [*771] governmental organization, but unless they do, they are considered as being under the traditional Hopi organization. That traditional organization recognizes the Kikmongwi of each village as the leader of the village. The Village of First Mesa has not adopted a village constitution. The village, therefore, remains under the traditional Hopi organization, with the Kikmongwi as village leader.
These provisions of the Hopi
Constitution, reserving certain powers to the Hopi villages, determine the
outcome of the present case. The underlying dispute here is between two clans
of the same, traditionally organized village. Each clan claims the right to
assign the land in question. The determination of which clan has the right is
to be made not by the tribal court system, but by the village according to its
established custom. Therefore, when the
In dicta, the Court stated that the village should decide the dispute "according to procedures that it determines and utilizing . . . the members of the village that the village deems appropriate . . . through the leadership of the Kikmongwi." n57
The Court further held that the tribal courts did not have jurisdiction to hear trespass actions, which turned on a determination of which clans within a village have rights to a particular tract of land. However, the tribal courts do have jurisdiction to hear trespass actions where the claim of right does not flow from a clan assignment, where "the validity of plaintiff's assignment through customary village procedures is undisputed" or where the village has already resolved the underlying dispute. n58
After Ross, it would appear that the villages have exclusive jurisdiction over intravillage farming land disputes. The Hopi Appellate Court has interpreted the Hopi Constitution's reservation of subject matter jurisdiction (Article III, Section 2) over such matters to be exclusive-requiring trial court dismissals for lack of concurrent jurisdiction. The exercise of jurisdiction over such "farming land" is becoming increasingly important as the Hopi population expands and as more and more Hopis seek to build homes or to locate mobile homes outside of the traditional residential areas. However, Ross has not stopped the flow of related actions to tribal court. Instead, the legal issues are shifting to the matter of whether and how the tribal court may recognize and enforce village decisions. This important issue was recently addressed in Honie v. The Hopi Tribal Housing Authority. n59
In July of 1996, the Hopi Tribal Housing Authority (HTHA) filed a complaint for injunctive, declaratory, and monetary relief against Mr. Emil Honie, Sr., leader of the Tewa Sand Clan. The HTHA alleged that Mr. Honie threatened and interfered with the [*772] activities of employees of the construction company contracted to build a home on the disputed plot of land. In August of 1996, the trial court "remanded" the matter to the First Mesa Consolidated Villages (FMCV) to resolve the dispute. The FMCV filed its notice of decision with the trial court, FMCV abrogated the land assignment to a Ms. Deborah Pablo, set forth the "format and procedure for acquiring all future land assignments by the FMCV," and re-granted the land to Ms. Pablo under such procedures. The trial court formally recognized and certified the village decision. n60
The petition filed by HTHA for injunctive relief against Mr. Honie was then heard in October of 1996. At the conclusion of the evidence, the trial court issued a permanent injunction against Mr. Honie enjoining him from going near the property or otherwise interfering with construction. n61 Mr. Honie appealed this decision arguing that the trial court's recognition and certification of the FMCV's decision constituted legal error since both the procedure and substance of the village's decision were in error. Mr. Honie argued that this same land had been previously properly assigned to a member of the Tewa Sand Clan and that neither he nor members of the Tewa Sand Clan were involved in the village decision-making process, that the trial court certified.
The Court construed Mr. Honie's appeal to be a petition for an extraordinary writ to review the trial court's certification of the FMCV's decision because the issue before the court "involved an issue of great public concern and no other plain, speedy and adequate remedy . . . appeared to exist for review of the trial court's actions on the certification issue." n62 The Court then found that the trial court had the authority to certify the village decision in matters reserved to the village and to proceed to the enforcement of such decision with injunctive relief or other remedies. However, the Court held that the trial court must hold an evidentiary hearing to determine whether all interested parties have been provided with a fundamentally fair opportunity to participate in the village decision-making process before the trial court could recognize and certify the village decision:
At a minimum, all interested parties should be provided with adequate notice and a meaningful opportunity to be heard in the village decision-making process. . . . Only after the petitioner has established, through an evidentiary hearing, that the village has properly ensured that all interested parties have been provided with a fundamentally fair process in the village's decision-making process may the court certify the village decision and proceed to consider any available remedies in the courts. n63
The Court set out the procedure to be followed in such certification hearings: the party requesting certification must provide adequate notice to all interested parties by publication and posting of such request; the trial court shall set the hearing no earlier than sixty days from the date of notice; at the hearing, the burden is on the petitioner (the party requesting certification) to establish that the village has provided all interested parties with a fundamentally fair opportunity to assert their interests before the village makes its [*773] decision. n64 Interested parties who move to intervene in the certification hearing shall also have an opportunity to testify or to present evidence that the village did not provide them a fundamentally fair opportunity to participate in the village decision-making process. n65 Where the petitioner fails to establish by clear and convincing evidence that the village has provided interested parties with a fundamentally fair opportunity to participate, the trial court should deny the petitioner's request for certification of the village decision. n66
In the certification process in Honie I, the trial court merely ordered the certification-without benefit of public notice of a hearing, or holding of an evidentiary hearing. As a result, the Appellate Court vacated the trial court's certification of the FMCV's decision and ordered the trial court to hold a certification hearing within 120 days. After such time, if appropriate, the permanent injunctive order could then be enforced. Although the Appellate Court did not elaborate, it was clearly concerned with basic concepts of Hopi fairness in the use of the Tribe's court orders and police officers to enforce village decisions. However, Honie is purely procedural. It does not appear to prevent tribal court certification of village decisions where a village uses good notice and hearing practices, but then reaches a decision unsupported by the evidence. The Honie decision stops short of requiring full-blown procedural due process at the village level. Presumably the Court wished to preserve traditional or existing dispute resolution process at the village level, as a matter of local government choice.
The Hopi Constitution sets out the basic framework for an integrated government-unifying the villages and sorting power between the central tribal government and the villages. However, this is a very complex undertaking. This is particularly true when it comes to the reserved jurisdiction of the villages with respect to land issues. The trial court hearing process, the factual and legal findings of the tribal judges, and their written reasoning provide the means by which this complex integration can be worked through case by case.
V. HOW DO THE TRIBAL COURTS DECIDE MATTERS OF CUSTOM?
At the outset of this discussion it is important to state that treating "custom" as a subset of what the Hopi government, villages, and courts handle distorts and minimizes ubiquitous Hopi law ways. From the Hopi perspective, the relevant inquiries are when, how and why Western institutions, process and legal standards were merged into the existing Hopi system. Modern Hopi institutions are a merger of persisting traditional institutions, process and values and western forms (the Hopi Constitution, legislature, and an adversarial court) and values (a rights based versus a duty based legal system). Coming from this perspective the Hopi judges decide cases applying first Hopi constitutional and tribal law, then by applying Hopi custom, and finally, where relevant, importing selected or modified foreign law through the judicial opinion drafting process. Because Hopi constitutional and statutory law recognizes traditional legal authorities and jurisdiction, an exploration of "custom" at Hopi goes beyond identification and application of Hopi values in the tribal courts. First and foremost at Hopi, the tribal custom law area is about identifying traditional legal authorities, determining their subject [*774] matter jurisdiction, and determining whether the tribal courts have concurrent jurisdiction to hear a particular type of dispute before them. Consequently, before discussing custom as values, I will discuss traditional legal authorities at Hopi.
A. Traditional Legal Authorities
Given the generalization of traditional village and clan governance outlined in Section II, it is possible to identify a number of potential legal authorities at Hopi: n67 the village Kikmongwi, clans, societies, female clan heads, male clan heads, Tahas, et cetera. Identification of these potential legal authorities raises numerous difficult questions in the modern Hopi tribal court. A sampling might include: 1) Whether a Kikmongwi should be recognized as having legislative authority in addition to judicial authority, 2) Whether he can exercise some sort of personal and subject matter jurisdiction over all persons and things within the bounded area of land under his legitimate control, 3) Whether clans and/or societies should be recognized as having personal and subject matter jurisdiction over individuals and property implicated by land holding rights and their ceremonies, and 4) Whether female or male clan heads should be recognized as having legislative or judicial authority with respect to clan members and clan property, or should they be considered mere mediators. The need to identify village legal authorities and the contours of their power arises in a number of ways in tribal court.
Under Article III, Section 2 of the Hopi Constitution the "villages" may exercise their reserved subject matter jurisdiction to resolve disputes between village members concerning the care and custody of children and incompetents, other family disputes, and intra-village land/property disputes. n68 However, the Constitution reserves powers to the villages without any characterization of what the recognized leadership or institutions of the village are. As a result, there may be two or more potential authorities in a village vying for secular control over village matters and the resolution of disputes. Is it the village leader, or Kikmongwi, or his spokesperson, or the secular village board who decides disputes? When do clan and society leaders decide disputes? Should clan Tahas (maternal uncles) be considered authorities for purposes of dispute resolution or merely mediators or counselors? Ultimately, it is up to the members of the villages and their leadership to work these matters out. n69 In the interim however, the tribal courts do their best to recognize legitimate exercises of traditional authority when they encounter them.
In the recent case of Nutongla-Sanchez v. Garcia et al., the Hopi Appellate Court held that a clan relative may resolve an intra-village inheritance dispute in the traditional Hopi manner and that the res judicata doctrine will bar re-litigation of such decisions in tribal court where such decisions are final. n70 In this case, the children of the deceased (a daughter and two sons), could not agree on how to distribute three home structures, two within the village and one in a nearby orchard. The children took the matter before a male clan relative who determined that the decedent had an oral will and distributed the three structures according to the will - one structure per child. The children initially expressed satisfaction with the distribution. However, some time later, the daughter informed the others that she no longer agreed with the distribution and took the matter before the [*775] village board of directors. The village board was unable to resolve the matter and waived its jurisdiction to decide the matter. Subsequently, the daughter filed a petition in the Hopi trial court asking it to distribute the estate. The trial court took jurisdiction over the matter, found that the decedent left an oral will, and ordered a distribution identical to that of the clan relative. The daughter appealed the trial court's distribution arguing that the trial court judge failed to make an initial determination that the Hopi courts recognize oral wills, and that if oral wills are recognized, the court distributed the estate without first determining whether the oral will was valid. The Hopi Appellate Court vacated the lower court distribution finding that the trial court erred in allowing the parties to re-litigate an issue already resolved by the clan relative at the village level:
Article III, Section 2 of the Hopi Constitution reserves four subject matter areas to the Hopi Villages. Section 2(c) reserves to the villages the power to "regulate the inheritance of property of the members of the village." The language of this subsection gives rise to an interpretive issue because it provides that inheritance disputes are reserved to "the villages," but speaks no further on the same matter. It does not specify what governmental entity or entities within the village possess the constitutional power to resolve disputes falling under Section 2(c).
The answer to this question is not obvious, because the respective villages at Hopi vary significantly in terms of their governmental structures: some are "traditional" villages, where the preeminent village authority is the kikmongwi; some are "modern" villages with a formal constitution allocating governmental powers within the village; and most are "hybrid" villages, where the division of power between traditional leaders and popularly elected village board members remains somewhat uncertain.
In a hybrid village legal authority is not concentrated in any one governmental entity. Because [this case involves] a hybrid village, it cannot be assumed that the language of Section 2(c) vests the power to resolve inheritance disputes in the [village board of directors] exclusively. Outside of the [village board], other [village members] possess legal authority within the village. The basis of this legal authority is tradition and custom. Traditional legal authorities, as well as the Village Board, may possess the power to resolve inheritance disputes and distribute property pursuant to the Hopi Constitution.
A village member is a traditional legal authority in the area of inheritance law where there is a longstanding custom within the village recognizing his or her power to resolve inheritance disputes. This acknowledged power to resolve inheritance disputes may stem from the village member's status within the community, or his or her relationship to the parties. For instance, it is a common practice at Hopi for the heirs of a decedent to take any inheritance dispute that may arise among them to the appropriate clan relative, who determines how the decedent's estate should be distributed. In recognition of this practice, this Court hereby takes judicial notice that there is a "generally known and accepted" [*776] custom at Hopi recognizing the appropriate clan relatives as traditional legal authorities with the power to resolve inheritance disputes . . . .
Clan relative settlement is an
effective means to resolve intra-village inheritance disputes in a traditional
Hopi manner and in a traditional Hopi legal forum. For the Tribal Courts to
disregard this method of dispute resolution would be to show disrespect for
traditional Hopi law and traditional legal authorities within the villages.
Perhaps more to the point, the Hopi Constitution mandates that the
[This village] had jurisdiction
over this inheritance dispute. [The clan relative of the disputants] had legal
authority to hear their dispute under Hopi customary law. Thus [he] must be
viewed as having properly assumed jurisdiction on behalf of the village. In
other words, he possessed the authority to render a "village
decision" in this case, and the
However, the Hopi Appellate Court stated that the res judicata doctrine will only bar re-litigation of a dispute where the clan relative's decision is final. The Court then set forth the rule that a clan relative's distribution of property is considered final when: 1) all of the disputants agree upon the clan relative who will resolve the dispute, and 2) the disputants agree at the outset that they will be bound by the final decision of the clan relative, or 3) all of the disputants manifest their satisfaction with or acquiescence to the final decision of the clan relative after he has rendered his decision. n72 The Appellate Court effectively recognized that under Hopi tribal law (in addition to traditional practice), clan relatives have the authority to arbitrate or mediate inheritance disputes.
Finally, in addition to the formal dispute resolution fora outlined in and recognized by the Hopi Constitution and Appellate Court case law (Council, Courts, Villages, and clan relatives), there are other persisting traditional dispute resolution authorities. Outsiders often seek to lump these authorities and their process in with Western style mediation or restorative justice without understanding what they are. It should be made clear, however, that the Hopi have persisting traditional institutions and authorities that decide matters within their subject matter or personal jurisdiction sphere according to village and clan customary law. These mechanisms include religious societies and the presiding priests of a kiva at a given time of year. This also includes clans and clan leaders, and the Kikmongwi and other village leaders who are undertaking their traditional village responsibilities. The details of what these authorities do and how they do it [*777] comprises the body of Hopi religious law, much of which cannot be shared with the uninitiated.
B. Custom as Values
There are many occasions when the tribal courts seek to find and incorporate tribal or local village customs into the common law. n73 But what exactly are the judges looking for? Many of us have a general sense that customs are values. However, the identification and application of these values as law in live disputes requires precise definition. Consequently, I subdivide custom into the following useful concepts: social norms, legal norms, traditional practices, and current local practices. n74 Anthropologists define social norms to be "felt standards of proper behavior." n75 A legal norm, by contrast, is a felt standard of proper behavior that is "actively protected conduct." n76 In layman's terms, social norms are what most people in a given community would consider to be proper behavior (people should refrain from gossiping for example) but which do not rise to the level of an enforceable legal duty. Legal norms are expected proper behaviors backed by official sanctions. A good example of a traditional legal norm at Hopi is that people should be sober and respectful while present in the kiva or the plaza during the ceremonies. Traditionally, and presently, disciplinary kachinas police the villages and physically punish (by whipping with yucca for example) or publicly humiliating those who violate the legal norm. Further, the Hopi Tribal Council has manifested its intent to recognize the norm as legal by criminalizing belligerent behavior and drunkenness in the kiva during the ceremonies. n77 The Hopi police and prosecutor enforce the legal norm by arresting, detaining, and prosecuting perpetrators in the Hopi tribal court.
It is also important, however, to divide "custom" into "traditional practices" and "current local practices." The Hopi judges have found that these are not always the same, although both may be considered legal and either may be a basis for establishing new legal standards in the tribal common law. n78 No culture is static and the legal norms of all societies evolve. Further, in recent history, at least five Hopi villages have experienced a break-up of the governing clan and society system which has permanently altered traditional clan rights in and power over lands and population. n79 Although I will not go into a detailed discussion here, there are times when Hopi trial judges will seek to discern not only a traditional legal norm but also the current practice as legal norm at the village level. Old law is not always still good law.
C. Finding and Applying Custom in Court
Hopi trial court judges, in hearing matters before them will often be able to identify when and how substantive Hopi legal norms apply in a given situation and may take judicial notice of a custom. For example, it is widely understood at Hopi that children belong to their mother's clan and that the child is expected to engage in clan activities at certain times of the year. This "custom" would be highly relevant in establishing a common law custody standard, or as a factor in determining what is best for the child. A judge might take judicial notice that it is a Hopi custom for the child to [*778] be with his clan at a certain time of the year, hence there may be a presumption of custody with the Hopi mother at bean dance (February) or at homegoing dance time (July). n80
However, there is a limit to what the Hopi judge might be able to take judicial notice of. The Hopi villages were once autonomous with their own constellations of clans and ceremonies. Each village, and even each clan, has a unique set of substantive legal norms governing given subject matter areas. These norms often derive from the history of the village/clan and the nature and responsibilities of the traditional authority (the Kikmongwi, the clan, the society, clan leaders, et cetera). Further, the secular government of the village (a governor or a village board of directors) may proclaim a modified version of a traditional legal norm as a matter of secular village policy. All this diversity, and the pool of possible authorities, requires fact-finding hearings (at least) at the tribal court level in order to identify the relevant legal norms in a given case.
Increasingly parties before the tribal court today assert that substantive custom is a governing legal standard in their pleadings and arguments before the trial court. Pursuant to Hopi Tribal Resolution H-12-76, Section 2(a), the tribal courts are mandated to consider the applicable law in a precedential order of authority. The courts in deciding matters of both substance and procedure, shall look to and give weight to: (1) the Hopi Constitution and Bylaws; (2) the ordinances of the Tribe; (3) the resolutions of the Tribe; (4) the customs, traditions and culture of the Tribe; (5) the laws, rules, and regulations of the federal government and the cases interpreting them; (6) the laws and rules of the state of Arizona and the cases interpreting them; and (7) "the common law." However, under Section 2(b), the Courts of the Hopi Tribe shall not recognize nor apply any federal, state, or common law rule or procedure which is inconsistent with either the spirit or the letter of the Hopi Constitution, ordinances, resolutions, or the custom, traditions, or culture of the Hopi Tribe." Federal and state law are considered persuasive but not mandatory authority. n81 The Hopi Appellate Court has also held that relevant custom must be considered before the application of foreign law (federal and state law) in the Hopi Tribal Courts. n82
The case of Hopi Indian Credit Association established the required process for the pleading and proving up of custom before the trial courts. n83 In 1984 the Hopi Credit Association (HCA) brought a civil action in the trial court to recover $ 2900 from a Hopi businessman who had defaulted on a loan. The default occurred in 1974 and the Credit Association did not file its suit until ten years later. As a result, the defendant filed a motion to dismiss the suit arguing that the action was time barred. The HCA argued in turn that the Hopi Rules of Civil and Criminal Procedure did not include a civil statute of limitations, and that custom and tradition excluded the application of such a limitation. They argued that this was based on a custom that the reciprocal giving between members of a bride's family/clan and the members of the groom's family/clan had no time limits and that years could pass before the giving of food and other gifts was complete. The trial court ultimately dismissed the complaint deciding that the federal statute of limitations period of six years would apply. The HCA appealed the decision arguing that under Hopi Resolution H-12-76, the trial court erred in applying federal law before Hopi custom and [*779] that the Hopi custom addressed the legal issue.
The Hopi Appellate court reversed the trial court's dismissal and remanded the matter for a fact finding hearing on the existence and relevance of the asserted custom:
The trial court did not explicitly say that federal law should be given precedence over Hopi custom, tradition or culture, but it noted that when the Hopi Constitution, Ordinances or Rules did not speak on a given issue, then "we should refer to the federal rules as well as to Arizona rules and then common law and [Hopi] custom and tradition as a means to aid the Court . . . ." . . . In effect, the trial court would look to authorities listed in H-12-76, section 2(a), in descending order until it reached the resolutions of the Hopi Tribal Council, then it suggested it should skip over customs, traditions and culture of the Hopi Tribe and apply federal and state law. Customs and traditions would be considered last in aiding a court, alongside the common law. This interpretation is incorrect.
The customs, traditions and
culture of the Hopi Tribe deserve great respect in tribal courts, for even as
the Hopi Tribal Council has merged laws and regulations into a form familiar to
American legal scholars, the essence of Hopi law, as practiced, remains distinctly
Hopi. The Hopi Tribe has a constitution, ordinances and resolutions, but those
Western forms of law codify the customs, traditions and culture of the Hopi
Tribe, which are the essential sources of our jurisprudence. Therefore, as we
held in Mahkewa, the customs, traditions and culture of the Hopi Tribe
must take precedence in a court's decision of what law to apply before a court
reaches the use of any foreign law, including federal or
Although Hopi customs, traditions and culture are to be considered by a trial court before it considers foreign laws, it is not enough just to say that they are "mandatory" to use as if they could be quickly or easily applied. Hopi customs, traditions and culture are often unwritten, and this fact can make them more difficult to define or apply. While they can and should be used in a court of law, it is much easier to use codified foreign laws. The ease of use may convince a trial court to forego the difficulty and time needed to properly apply our unwritten custom, tradition and culture. However, the trial court must apply this important source of law when it is relevant. n84
The Appellate Court went further to set out the required procedures for the pleading and proving up of custom:
A party who intends to raise an issue of unwritten custom, tradition or culture shall give notice to the other party and the court through its pleading or other reasonable written notice . . . . The proponent of Hopi customs, traditions and culture must then (1) plead them to the court with sufficient evidence to [*780] establish the existence of such custom, tradition or culture, and then (2) show that the recognized custom, tradition, or culture is relevant to the issue before the court. The relevancy of Hopi custom, tradition or culture as to any legal matter should not be presumed . . . . A court may dispense with proof of the existence of a Hopi custom, tradition or culture if it finds the custom, tradition or culture to be generally known and accepted within the Hopi Tribe. In such case, the judge may take judicial notice of the custom or tradition. This does not dispense with a showing of relevancy . . . . Just as the trial court must apply Hopi constitutional law when it is applicable, even if neither party pled the Hopi Constitution, so too must a trial court take judicial notice of and then apply Hopi custom, tradition or culture when it is applicable. n85
Any decision made by the trial court as to the definition or applicability of custom may be reviewed by the Hopi Appellate Court de novo on appeal. n86 Since Hopi Indian Credit Association, the Hopi Appellate Court has experienced an increase in petitions and appeals where the parties argue that substantive custom was rightly or wrongly decided by the trial courts.
Custom and tradition is almost always relevant and applicable in disputes between parties before the Hopi Tribal Courts. Ideally, however, parties with disputes falling within the reserved subject matter jurisdiction of the village, should go before the village forum so that it has the opportunity to make a decision based on its interpretation of the local village law. Although the villages continue to engage in religious legal process to enforce religious legal norms, they lack established fact-finding fora to identify their more secular customs and practices. For this reason, they often waive their jurisdiction, thus compelling the Hopi tribal courts to develop consistent, fair, processes for finding and applying the local custom in tribal court.
In the recent case of Smith v. James, the Hopi Appellate Court set out procedural and evidentiary rules for the holding of fact-finding hearings to find applicable custom. n87 In Smith, Daughter X and the granddaughters (children of Daughter Y) of decedent-grandmother were in a dispute as to who had acquired use rights to a tract of farming land in one of the villages. Daughter X had married a non-Hopi and moved off the Hopi reservation. Her nieces contended, according to custom and tradition, that they had acquired their rights through their mother (Daughter Y) who remained on the land and cared for her mother until her death. They further argued that Daughter X lost her inheritance rights when she married a non-Hopi, moved off the reservation and failed to participate in the annual ceremonies. The dispute came to a head when Daughter X put up fencing and planted fruit trees on the property. The granddaughters brought the matter before the village board for resolution and filed a petition for injunctive relief before the Hopi trial court. The village board requested that the tribal court resolve the matter so the granddaughters amended their petition before the trial court to include a request to quiet title. In 1995, the trial judge held a hearing where evidence was presented with respect to the parties' asserted rights and use of the land.
Based on the issues identified in this hearing the trial court judge scheduled a [*781] second hearing to determine the local village custom with respect to the ownership and relinquishment of land by female members of the village who marry out of the tribe and who live off the reservation for extended periods of time. The second hearing was held in 1997 and was sited at the village. At this hearing, the trial judge took testimony from witnesses selected by the parties about the custom and traditions of the village. The judge asked questions in Hopi and the witnesses responded in Hopi. No attorney questioning or cross-examination was permitted. Following this hearing the trial court judge entered his findings and judgment in favor of the granddaughters. Daughter X appealed. At the time of the appeal however, she was not represented by counsel and was unable to draft a brief with clear legal arguments. The Hopi Appellate court construed her written statement as an appeal as a matter of law which they reviewed de novo. Upon review, the Appellate Court identified significant procedural errors, vacated the trial court order, and remanded the matter for a new set of hearings. In the final opinion, the Appellate Court praised the trial court judge for his efforts but then spelled out why it was compelled to vacate and remand. n88 The Court went on to set out some specific procedural rules for handling such hearings in the future.
The Appellate Court was unable to uphold the trial court's decision for three reasons: (1) the village was not involved in the selection of witnesses who would be testifying on the applicable village custom; n89 (2) although the trial judge appropriately solicited testimony from the witnesses in a non-adversarial manner, the parties were not permitted to submit additional questions following initial testimony; n90 and (3) the trial court committed error in holding the "trial-type" evidentiary hearing before it held the hearing to find the customary law. n91
Presumably the Court was concerned that the villages be given an opportunity to identify important local authorities (witnesses) to weigh in on the identification and applicability of custom and current local practices. The Court went into some detail about why it was necessary for the trial court to inquire into and apply this village's custom and practice:
It was necessary for the trial
court to inquire into and apply village customary law and practice in the
instant case because of the unique history of the
If parties are left alone to identify the witnesses to be called, as happened in this case, they are likely to select witnesses who are supportive of their arguments on the [*782] merits, and who are more likely to testify as to the pronouncements, actions and deeds of family members. Including the village in the witnesses selection process provides the village with the opportunity to weigh in on the court's identification and application of that village's custom and practice in tribal court.
Further, although the Court praised the trial court judge for his handling of the hearing process, it was also concerned that, in the absence of Western-style cross-examination, the parties should be afforded some processes to flesh out the legal issues:
The non-adversarial nature of the hearing was also proper since many elders might be fearful of undergoing cross-examination. An adversarial atmosphere would not foster village participation in these hearings. However, the parties should have been afforded an opportunity to request further questions after the initial testimony in order to ensure that there are not substantial gaps in the law being found. n93
Finally, the Court was compelled to vacate the trial court's findings of fact-as to the applicable custom-where it held the evidentiary hearing on the merits prior to holding a hearing to find the customary law standards:
The parties presented evidence supporting their claims of right to the land in question at a trial, before the trial judge on June 29, 1995. However, a hearing to determine the customary law pertaining to the parties' rights was not held until nearly two years later in March of 1997 . . . . This was a procedural error on the part of the trial court because, without an established legal principal, parties are unable to construct coherent arguments or select the evidence that will support their case since they are forced to speculate as to what the law is. Forcing this speculation is not in the interest of the tribal courts or the parties. Consequently a new fact-finding hearing is required. n94
The trial judge does not appear to have erred in holding the initial evidentiary hearing on the merits, but rather the error arose when he failed to do so again following the hearing to find the applicable substantive custom law standard. The Appellate Court found that considerations of fairness to the parties required a remand for this purpose.
In light of the difficulties the trial judge faced in proceeding in this area without standards, and given the specific procedural and evidentiary errors in this case, the Appellate Court pronounced additional procedures for future hearings. These procedures address proper notice, witness and question selection, and follow-up questioning:
 Notice shall be given to the parties and the Village to allow participation in the selection of witnesses. The first step in the special hearing process is Notice. The Court should notice the village and the parties as to the hearing and its purpose, offer guidance as to the kinds of witnesses it seeks, and explain in detail the narrow purpose of a fact-finding hearing to find customary law. [*783] Depending on the specific law sought, the judge should try to provide guidance to the Village and the parties for choosing their witnesses. The parties and the Village should then submit a list of potential witnesses along with explanations of the reason for their inclusion on the list, and the type of testimony they can offer. Although the trial judge should give deference to the Village's selection of witnesses, the judge should exercise discretion in approving the final list.
 Questions should be proposed prior to the hearing. However, once the initial testimony has been heard, there will be additional questions necessary for clarification. Once a witness list has been assembled, the judge should present an initial list of proposed questions to the parties and permit them to offer suggestions. The judge should be responsible for framing this list because this will ensure that questions do no seek to establish matters, but instead seek to discern general principles of village practice. Answers given in the initial testimony, however, will invariably raise new questions. Therefore, in future hearings the parties should be afforded another opportunity to provide additional questions in response to testimony. The judge can then immediately return and ask these questions of the witnesses. Such a procedure will help eliminate potential gaps in the law. n95
After Hopi Credit Association and Smith, it is clear that the Hopi courts are ready and willing to undertake the process of finding and applying custom law in tribal fora. However, this is a complex undertaking which is made more tedious and lengthy in order to ensure a fair process. The Court in Smith recognized that this process places an extreme burden on the parties both in terms of time and money. In the final section of its opinion in Smith, the Court stressed that the parties have another alternative. n96 They can resort to arbitration or mediation by a traditional clan authority. Final decisions by such authorities can then be certified and enforced in tribal court. Finally, the Court cautioned that it can only provide the types of remedies within its power and that arbitration or mediation may offer a wider range of outcomes.
These recent decisions have focused the discussion at Hopi on how local Hopi values and traditional authorities are to be formally identified and recognized by the tribal government and applied in the Western-style tribal court. The issues raised in these cases are stirring the thinking of tribal and village leaders and tribal judges alike. The written decisions in these cases catalogue the handling of specific issues, providing perspective, formalizing Hopi values, and creating consistent pathways for the handling of similar cases in the future. This process is only a beginning.
Although the origins of the Hopi Tribal Council and the Hopi Constitution are controversial and arguably not originally derived from the Hopi people themselves, the modern Hopi electorate has amended and re-adopted the Constitution as a declaration of sovereignty, and in an act of self-determination. No one's culture is static and many who [*784] would coerce Hopis to emulate the past usurp Hopi control over its future. While Hopis themselves do no seek to emulate the past, they continue to live in a Hopi present with the ubiquitous Hopi law ways. These ways are invoked in the tribal constitution, in tribal legislation, and are being identified and elaborated on in the tribal common law. The process of evolving the Hopi common law is a primary means by which the Hopi people are having important discussions about the nature of the union of the villages and the modern application of their values. This process is facilitating the sorting of jurisdiction between the Tribe and the villages in a principled way. It is facilitating the identification of traditional authorities. It is ensuring that the tribal enforcement of clan relative and village decisions are based on a minimally fair process. Finally, this process is identifying, bolstering, and documenting Hopi values by finding relevant customs and practices, and by carefully weighing when and how foreign (federal and state) law will be imported into the Hopi jurisdiction. And this time Hopis are in control of the process.
n1 Anthropologists have used numerous methods and tools to identify the governance and law of tribal societies. The more useful of these for our purposes here include: 1) the identification of how members of a particular group are related to one another biologically and socially and the duties and obligations deriving from these relationships (the study of kinship); and 2) the study of the administrative machinery of a given group and its resolution of actual disputes between members of the group (the trouble case method). See MISCHA TITIEV, OLD ORAIBI: A STUDY OF THE HOPI INDIANS OF THIRD MESA (1974): 56-58; see generally KARL N. LLEWELLYN AND E. ADAMSON HOEBEL, THE CHEYENNE WAY: CONFLICT AND CASE LAW IN PRIMITIVE JURISPRUDENCE (1941): Chapts. I-III. The fruits of the study of kinship at Hopi, provide an over-all sketch for an initial understanding of traditional village institutions, authorities and law. The kinship-derived descriptions in this paper are loosely based on both a restatement of the work of earlier anthropologists, and original fieldwork conducted by Mischa Titiev at Hopi in the 1930s at Old Oraibi village.
n2 See The Hopi Tribe, TUTUVEHNI, SPECIAL VISITORS' GUIDE (1997).
n3 HOPIT TUNATYA'AT, HOPI COMPREHENSIVE DEVELOPMENT PLAN, PART II, BACKGROUND INFORMATION AND RESOURCE INVENTORY (Mar. 1988) p. II-1.
n4 See id. at V-7, V-8.
n5 Mischa Titiev has classified four Hopi kinship divisions: 1) the household; 2) the lineage; 3) the clan; and 4) the phratry. He defines "household" as the smallest distinct unit of Hopi society. TITIEV, supra note 1, at 58. The household consists of an exogamous group of kindred (members will not marry members), related through matrilineal descent from the same ancestress and sharing a common residence. See id. A "lineage" includes the households. It is an exogamic, unilateral group of kindred, demonstrably descended from the same ancestress. See id. The "clan" is a totemically named, exogamous, unilateral aggregation of matrilineal kindred, comprising one or more lineages all of which are supposedly descended from one ancestress. See id. Finally, a "phratry" is defined as a nameless division of kindred made up of two or more clans, which share certain privileges, mainly ceremonial, in common. See id.
n6 In his book OLD ORAIBI, A STUDY OF THE HOPI INDIANS OF THIRD MESA, Titiev consolidates the mythologies which legitimize the intimate connection of Old Oraibi village leadership with land control prior to 1906:
For some time prior to their emergence from the underworld, people had been hearing footsteps above them, but when they reached the surface of the earth it was cold and dark, and nothing could be seen. In due time they noticed a distant light and sent a messenger who returned with the welcome news that he had discovered a field on which corn, watermelon, beans, etc., were planted. All around this field a fire was burning . . . by which the ground was kept warm so that the plants could grow. Nearby the messenger found a man whose handsome appearance contrasted strangely with the grotesque death's head mask that stood by his side. At once the messenger realized that it was Skeleton (Masauwuu) whom they had heard walking about from the other world. The deity proved kindly disposed, fed the courier and sent him to fetch all his companions. Here they built a large fire, warmed themselves, and Skeleton gave them roasting ears and watermelons, melons, squashes, etc., and they ate and refreshed themselves. Some of the plants were very small yet, others still larger, so that they always had food.
In time the people left Masau'u and set out on the wanderings that were ultimately to bring them to their present settlements. For a while the Bear people settled at Chimpovy but they all had heard that Skeleton was living where Oraibi now is, and so they all traveled on towards Oraibi. The Bear clan leader, Matcito, asked Masau'u to give him some land and to be the chief of his people but Skeleton replied, "No I shall not be chief, You shall be chief here . . . I shall give you a piece of land and then you live here." Hereupon he stepped off a large tract of land, which he allotted to Matcito. Soon other clans began to arrive, each seeking permission to dwell at Oraibi and each offering in exchange to perform a beneficial ceremony for Matcito. If the trial performance proved pleasing to the chief he would say, "Very well, you participate in our cult and help us with the ceremonies," and then he would give them their fields according to the way they came. And that way their fields were all distributed. TITIEV, supra note 1, at 61.
Based on this mythology, Titiev documented three types of Hopi land holdings in Old Oraibi village: 1) land allotted to clans as they arrived at Oraibi in ancient times; 2) land reserved to the village chief who then allotted some of it to clans and officers of important village ceremonies; and 3) "free land" held by the village chief who allotted it to "good citizens." The test of good citizenship being frequent participation in ceremonies, promptness in responding to calls for communal work such as cleaning springs, and willingness to occasionally take responsibility for sponsoring a dance. See id. at 59-63, 184.
n7 For example, Titiev explains how the office of village chief is merged with the leadership in the Soyal rite at Old Oraibi. He describes a meeting of ceremonial officers, which occurs at the end of this rite. A sacred stone is examined by the officers who reaffirm their rights to hold office and to lay claim to the land. Following this affirmation, the village chief and Soyal officers participate in a "chief's talk" where the village chief speaks first of the prayers made during the rites. His speech is echoed by each of the Soyal officers. See id. at 59-63.
n8 During the early 1900s, husbands moved in with their wives, and new children automatically became part of the household groups, learning to distinguish between maternal grandparents, parents, mothers' sisters with their husbands and children, and unmarried brothers and sisters. See id. at 7.
n9 See id. at 103.
n10 See id. at 55.
n11 See id. at 62, 201.
n12 The causes of the break up of Old Oraibi are controversial. Mischa Titiev argues alternatively that the large size of the village itself fueled the breakup. He argues that "huge pueblos failed to endure precisely because they continued to operate with social structures that were best adapted to small communities . . . the preservation of powerful clan ties prevented the development of strong, central, village administrations . . . ." See id. at 99. Peter Whitely has argued that the leadership of Old Oraibi deliberately planned and executed the break-up. PETER WHITELEY, DELIBERATE ACTS: THE CHANGING OF HOPI CULTURE THROUGH THE ORAIBI SPLIT (1988). Whatever the primary cause, the split within the populace of Oraibi resulted in the eviction of half of its members in 1906. Those evicted moved on to form the villages of Bacavi and Hotevilla. The Oraibi farming satellite of Moencopi and the site of the Hopi day school in Kykotsmovi later grew into villages.
n13 25 U.S.C. § 476 (1970).
n14 "In October of 1936, with a vote of 651 for and 104 against, ratification of the Constitution and By-Laws of the Hopi Tribe was formalized pursuant to the Indian Reorganization Act of June 1934, Section 16, amended by the Act of June 15, 1935. Then Secretary of Interior, Harold L. Ickes approved the Constitution and By-Laws of the Hopi Tribe in December 1936, stating, 'over thirty percent of those entitled to cast their ballots, voted.' (actually forty-seven percent of eligible Hopi voters cast their ballots)." THE HOPI TRIBE, TUTUVEHNI, No. II, Vol. X, at 1 (2000).
n15 These amendments took place in August of 1969, February of 1980, and December of 1993. See id.
n16 The Hopi Constitution describes the Hopi Tribe as a "union of self-governing villages sharing common interests and working for the common welfare of all." It recognizes the following villages: First Mesa (formerly Walpi, Shitchumovi, and Tewa), Mishongnovi, Sipaulavi, Shungopavi, Oraibi, Kyakotsmovi (formerly part of Oraibi), Bakabi (formerly part of Oraibi), Hotevilla (formerly part of Oraibi), and Moenkopi (formerly part of Oraibi). HOPI CONST., art. III § 1.
n18 See id., art. IV, § 1
n19 See id., art. IV, § 4.
n20 "The following powers which the Tribe now has under existing law or which have been given by the Act of June 18, 1934, (48 Stat. 984), and acts amendatory thereof or supplemental thereto, are reserved to the individual villages:
(a) To appoint guardians for orphan children and incompetent members.
(b) To adjust family disputes and regulate family relations of members of the village.
(c) To regulate the inheritance of property of members the members of the village
(d) To assign farming land, subject to the provisions of Article VII."
n21 HOPI ORDINANCE 21 (1972).
n22 However, the Tribal Council has "affirmed" the separation of the judicial branch from the legislative and executive branches by resolution. HOPI TRIBAL RES. # H-3-81. True separation will require a constitutional amendment.
n23 See Tribe v. Mahkewa, AP-008-93 *, pp. 6-7 (Hopi App. Ct. 1995) (holding that the Hopi Tribe is not restrained by the due process clause of the United States Constitution, nor the due process guarantees in the Arizona Constitution. Rather, the Hopi Tribe is guided by the Indian Civil Rights Act, 25 U.S.C. § 1302(8), in guaranteeing due process to individuals within the Hopi jurisdiction. Under Hopi Resolution H-12-76, the Hopi courts have discretion to apply a Hopi interpretation of due process.).
n24 See ORDINANCE 35; see also ORDINANCE 50 (providing for protective orders for the benefit of children).
n25 See ORDINANCE 21, at Title I, d1.7.1; and ORDINANCE 35, at Chapter III.C.
n26 See ORDINANCE 21 at Title I, § 1.7.2.
n27 Under Hopi law,
the Tribe may not prosecute any Indian for an offense which is subject to
concurrent federal jurisdiction unless the
n28 See ORDINANCE 21, at Title I, d1.7.2; see also Scott, 14 ILR at 6003 (Hopi tradition has always recognized the inherent right of the Tribe to maintain peace and harmony and never relinquished the right to maintain law and order within its boundaries); see also Tribe v. Manycow, No. 00-59-0060-0061 (Hopi Tr. Ct. 1994) (affirming Scott in rejecting Navajo defendant's challenge to the validity of criminal jurisdiction over non-member Indians).
n29 See ORDINANCE 21, at Title III, § 3.2.4.
n30 See ORDINANCE 21, at Title I.
n31 The current sitting Justices are: Chief Justice Emory Sekaquaptewa, Justice Fred Lomayesva, and Justice Jay Abbey.
n32 The Hopi
Appellate Project located at Boalt Hall is a specially designed program to
assist the Hopi Appellate Court in developing the Tribe's common-law. It is
also a clinical education program for law student judicial clerks. Law students
at Boalt are trained as appellate court clerks and research federal, state, and
Hopi law on appeals pending before the Court. Students do their course work and
n33 ORDINANCE 21, at Title I, § 1.2.5.
n34 See id.
n35 See id. at § 1.2.8.
n36 "Each village shall decide for itself how it shall be organized. Until a village shall decide to organize in another manner, it shall be considered as being under the traditional Hopi Organization, and the Kikmongwi of such village shall be recognized as its leader." HOPI CONST. art. III, § 3.
Any village which does not
possess the traditional Hopi self-government, or which wishes to make a change
in the government or add something to it, may adopt a Village Constitution in
the following manner: A constitution, consistent with this Constitution and
By-laws, shall be drawn up, and made known to all the voting members of such village,
and a copy shall be given to the Superintendent of the Hopi jurisdiction. Upon
the request of the Kikmongwi of such village, or of 25% of the voting members
thereof, for an election on such Constitution, the Superintendent shall make
sure that all members have had ample opportunity to study the proposed
Constitution. He shall then call a special meeting of the voting members of
such village, for the purpose of voting on the adoption of the proposed
Constitution, and shall see that there is a fair vote. If at such referendum,
not less than half of the voting members of the village cast their votes, and
if a majority of those voting accepts the proposed Constitution, it shall then
become the Constitution of that village, and only officials chosen according to
its provision shall be recognized.
n37 See id. at art. VI, § 1(h); see also Village of Shungopavi v. Village of Sipaulovi, (Hopi Tribal Council 1975) (The Hopi Tribal Council received a petition from the Bear Strap Clan and Kikmongwi of Shungopavi objecting to leases entered into by the leader of Sipualovi and approved by the Hopi Tribe for the purpose of residential construction. The council convened and held a two-day hearing. The Council viewed the site and heard witness testimony in Hopi. The Council ultimately concluded that the petitioner failed to show that the claimed lands were within the lease area as petitioner's witness had trouble identifying landmarks and other witnesses testified that "under the tradition, following the deaths of their respective clan members in a duel many centuries ago, neither the Bear Clan nor the Bear Strap Clan could ever claim this disputed area again.").
n38 AP-006-90 (Hopi App. Ct. 1998).
n39 Under the Act "no Indian Tribe in exercising powers of self-government shall . . . take any private property for public use without just compensation." 25 U.S.C. § 1302(5) (1994).
n40 "When a dispute arises between villages over any matter, the Kikmongwi of any village party to the dispute may inform the Chairman of the Tribal Council of the nature of the dispute, and ask him to call a special meeting of the Council to settle the matter . . . ." HOPI CONST. art. VIII, § 1.
n42 "The Children's Court shall exercise jurisdiction over:
a. All children's matters arising off the Hopi Reservation which are referred to under the Indian Child Welfare Act (25 U.S.C. 1901, et seq.);
b. all minor-in-need-of-care matters arising on the Reservation which are not handled by the respective villages;
c. all juvenile offender cases arising on the Reservation;
d. all other matters specified in this Code involving children on the Reservation and placement made by the Children's Court off the Reservation." ORDINANCE 35, ch. III.C.1.
n43 "The Children's Court shall exercise jurisdiction over adults as follows:
a. In any criminal case occurring on the Reservation in which the victim is under eighteen (18) years of age and the person accused of the offense is an Indian eighteen (18) years of age or older, the Trial Court may assign the case for trial and disposition by the Children's Court following the rules, procedures and penalties applicable to the Tribal Court.
b. In any case before the Children's Court, the Children's Court may exercise the jurisdiction over any adult, Indian or non-Indian within the Reservation to facilitate the handling of children's cases. Such jurisdiction includes but is not limited to the power to compel attendance at court or other proceedings related to the disposition of a child's case, or impose restrictions, conditions and requirements relating to the care, guardianship, custody and/or control of a child, and/or to punish the adult for contempt of court.
c. Any off-reservation person or
agency, whether Indian or non-Indian, as a precondition of obtaining or
retaining the custody or guardianship of a child pursuant to this Code shall
execute a consent form consenting to the jurisdiction of the Hopi Children's Court.
Consent shall be approved by the chief judge of the
d. A non-Indian residing or
traveling upon the Hopi Reservation who disobeys a lawful order of the
Children's Court may be subject to removal and exclusion from the Reservation
in addition to any other penalties."
n44 See id. at Chap. III.C.4.
n45 See id. at Chap. III.C.1.b.
n46 See id. at Chap. III.C.1.e.
n47 See id. at Chap. III.C.1.f.
n48 "Person" is defined to include any individual, whether adult or minor, or vulnerable person. "Abuse and Violence" are defined to include assault, battery, threatening, coercion, confinement without consent, damage to property, emotional abuse, harassment, sexual abuse, and any other conduct which constitutes an offense or tort under Hopi law. ORDINANCE 50, subch. 1, § 5.01(a)-(b) (1996).
n49 "If the
village wishes to assert jurisdiction over the matter, it should inform the
court, in writing, within 15 days, of the notice from the
n50 See id. at subch. 1, § 6.01(b)(5).
n51 HOPI CONST. art III, § 2.
n52 HOPI CONST. art VII, § 1.
n56 Ross v. Sulu, AP-000-00 (CIV-023-88) (Hopi App. Ct. 1991).
n59 Honie v. Hopi Tribal Housing Authority, 96AP000007, at 7-8 (Hopi App. Ct. 1998).
n60 See id. at 7 (Certification allows the trial court a means by which to formally recognize a village decision and to proceed to the enforcement of such village decisions with injunctive relief and other remedies).
n61 See id. at 3.
n64 See id. at 8.
n65 See id. at 9.
n66 See id.
n67 A first step in identifying custom law standards is to identify the traditional legal authority and then to explore how he or she resolves a dispute. One prominent scholar argues that in order for a decision to be considered legal it must have certain attributes. There must be an authority (an individual or group of individuals) whose advice and decisions are usually followed by the rest of the members of the group. There must be an intention of universal application-the legal authority must intend that the decision be applied to all similar or identical cases in the future. The legal authority must also make some sort of statement as to the rights of the person suffering a loss because of the acts of another and there must be some identification of the duties owed. Finally, there must be some sort of sanction imposed-a withdrawing of rewards or favors or the inflicting of some painful experience (physical or psychological). See LEOPOLD J. POSPISIL, THE ETHNOLOGY OF LAW 30-51 (1985).
n68 Just what should constitute a "village" is a very complicated issue at Hopi. Unfortunately, the Hopi Constitution does not formally recognize the same discrete sovereign villages as existed before 1936. For example, the Constitution recognizes Oraibi, its satellites Moenkopi and Kykotsmovi, as well as Hotevilla and Bacavi to be separate villages. Yet the Constitution recognizes the "Consolidated Villages of First Mesa" as one "village". This causes serious problems as traditional authorities in the once intact Oraibi clan/society system have now been fractured and spread across five villages, and the once separate, independent authorities of First Mesa are lumped together under the leadership of only one village. See HOPI CONST. art. III, § 1.
n69 In Kyktosmovi,
the village secular governor acts as an arbitrator of disputes and actually
drafts a memorandum setting out the facts, his decision and his reasoning in
each case. Disputants generally accept his decision as binding. In other
villages such as Hotevilla, the village board of directors hears disputes at
scheduled board meetings and passes resolutions declaring final decisions.
These resolutions can be binding on disputants. The
The Board of Directors shall have
the following powers with respect to the affairs of the village: (a) To appoint
guardians for orphan children and incompetent members; (b) To assign farming
land, subject to the provisions of Article VII of the Constitution of the Hopi
Tribe; (c To adopt rules and regulations governing the inheritance of property
of the members of the village not inconsistent with the laws of the United
States in respect thereto; (d) to make village laws, rules and regulations
governing village members; (e) To set up the Village Indian Court, but the
judges of said court shall be elected by popular vote of the members of the
village as provided in Section 4 of Article IV of this Constitution; (f) To
perform such other powers as may be conferred upon the Board of Directors by
the By-laws and the Hopi Tribal Council. UPPER
However, the board of directors has not seen fit to establish a village court and sits as a court itself from time to time. Finally other village boards may make decisions in consultation with village Kikmongwi or leaders or with his representative sitting on such boards.
n70 Nutongla-Sanchez v. Garcia, 98AP00001, at 5 (Hopi App. Ct. 1999).
n72 See id. at 6.
n73 In the Hopi
Tribal Courts "custom and tradition" are not necessarily synonymous
with "common law." An equating of "custom and tradition"
with judge made law tends to demean village institutions and legal norms (both
religious and secular). The Hopi Tribe continues to have two legal systems
functioning in parallel, the village sovereigns with their dispute resolution
mechanisms and law, and the Hopi Tribal Courts which operate under Hopi Tribal
law. Care must be taken by
n74 For an in-depth discussion of social and legal norms, see K. N. LLEWELLYN & E. ADAMSON HOEBEL, THE CHEYANNE WAY: CONFLICT AND CASE LAW IN PRIMITIVE JURISPRUDENCE Chap. I-III (special ed. 1992).
n77 See e.g. ORDINANCE 21, Title III, dd3.3.91 & 3.3.92 ("Any Indian who willfully disturbs . . . any meeting for religious or ceremonial purposes, by any act, gesture or utterance . . . is guilty of an offense;" and "Any Indian who shall enter a kiva, ceremonial building or ceremonial area during the time of a religious or ceremonial activity while under the influence of alcohol . . . is guilty of an offense.").
n78 In one recent intra-clan dispute over farming lands, traditional experts witnesses became frustrated with the trial court judge's questions and became concerned about how the information might be used. One witness, after discussing a traditional norm, stated that this norm had not been in actual practice at the village level for a many years. See James v. Smith, 94CV000019 (Hopi Trial Ct. 1994) (translated transcripts for the second hearing). For a good theoretical discussion of the problems of traditional or customary law expert witness testimony at Hopi, see JUSTIN RICHLAND, OF ELDERS AND JUDGES: KNOWLEDGE AND AUTHORITY; THE POSSIBLE AND THE ACTUAL IN A TRIBAL COURT HEARING (1999).
n79 In 1906, the large village of Old Oraibi split with half the leadership and population moving on to form the villages of Hotevilla and Bacavi. Many of those who remained in Oraibi at that time eventually moved into satellite settlements which later became the villages of Moenkopi and Kykotsmovi.
n80 See Polingyouma v. Laban, AP-006-95 * (Hopi App. Ct. 1997) (Court took judicial notice that a child is born into his or her mother's clan and receives ceremonial training from his or her mother's household. The Court held that these customs are relevant to child custody arrangements.)
n81 Tribe v. Mahkewa, AP-002-92/AP-008-93/AP-003-93, at 3 (Hopi App. Ct. 1995).
n82 Hopi Indian Credit Ass'n v. Thomas, AP-001-84 * (Hopi App. Ct. 1996).
n83 See id. at 3.
n86 See id. at 5.
n87 Smith v. James, 98AP000011 (Hopi App. Ct. 1999).
n88 Indeed the trial court judge did an outstanding job in light of the fact that the Hopi tribe at this time lacked written procedures for such hearings or an evidence code. Additionally, the trial court judge wisely sited the hearings in the village, conducted the questioning of elder witnesses himself (to preserve the dignity and respect of the court and the traditional authorities); conducted the questioning in Hopi, disallowed attorney cross examination of elder witnesses.
n89 See id. at 9.
n90 See id.
n91 See id. at 8.
n95 Smith, 98AP000011 (Hopi Ct. App. 1999) at 11-12.