The Navajo Nation courts are unique because they have traditional and modern adjudication systems side- by-side. Our courts were founded on the western model in 1959. Lawyers who visit us will see statutes and rules of procedure which are very familiar. Similarly, the Navajo Nation has a version of the Model Penal Code and our criminal rules are patterned after Arizona's criminal rules. As it is with the United States generally, we have probation officers to supervise defendants who are found guilty.

In contrast, there is Navajo peacemaking, which is the traditional Navajo system of justice. Navajos did not distinguish between criminal and civil cases. To them, a dispute is a problem to be talked out among those who have an interest in it. The Navajo Nation judges revived peacemaking in 1982, and we now have sixteen years of experience with it.

Several things happened over those sixteen years which show that the traditional method of dealing with problems works well. The court rules assumed that judges would send certain kinds of cases into peacemaking. Instead, the Navajo people use it as a matter of choice, and most peacemaking cases are walk-ins. The rules assumed that there are certain kinds of cases you "can't" handle in peacemaking. In practice, the people who go into peacemaking bring all kinds of problems with them. The people select the case. Domestic violence is handled in peacemaking at the victim's choice. Many of cases involve alcohol use and abuse, and often family members bring their relatives into peacemaking to get them to address drinking behavior. One initiative, the Minority Male Project, which the Judicial Branch operated in conjunction with the Division of Social Services, shows that peacemaking is an effective way to deal with driving while intoxicated. Another project showed that it is effective to address delinquency.

There are over 250 Navajo peacemakers in the Navajo Nation's 110 chapters. In 1982, the judges wanted to return responsibility to the people to handle their own problems. Peacemaking was the original way Navajos handled conflict, and early records show that after the Navajo Court of Indian Offenses was founded in 1892, the Navajos who were appointed as judges brought peacemaking with them. When we returned peacemaking to the people in 1982, many communities accepted it with enthusiasm. The peacemakers gave us a few surprises. For example, several say they had to look at their own behavior because they were community leaders who are expected to lead by example. Some peacemakers are very traditional, and others are modern. Ruthie Alexius of Fort Defiance combines her skills as an alcohol counselor with her traditional knowledge and blends the two very well.

There is another unexpected result of peacemaking: In our experience with it, we learned a great deal about traditional justice methods. We call one such method "the traditional probation officer" in English. Traditionally, when someone committed an offense, that person's family took responsibility for the act. When a family paid compensation to a victim of the offense, that family watched over the offender to make certain there would not be another offense.

We have a chief probation officer and twenty-four probation officers in our seven judicial districts. They get training in the latest techniques of modern probation and work closely with state probation programs.

The question that occurred to Philmer Bluehouse, the director of the Peacemaker Division, Vincent Craig, our Chief Probation Officer, James Zion, our solicitor, and me was this: Is there a way to merge the functions of peacemaking and probation to make them more efficient. How an we tap the talents and energies of Navajo families to involve them when someone is hurt? "Hurt" means those who hurt others, but it also means those who hurt themselves, as with driving while intoxicated or the excessive use of alcohol. We then asked the question of how we could involve families in the criminal justice process. In other words, we want to put the "traditional probation officer" concept into practice today.

We have some other problems in the Navajo Nation. The nature of crime has changed. In the past, most criminal cases involved public intoxication, disorderly conduct, or the possession of alcohol. Today, the highest numbers of criminal cases are assaults and batteries, driving while intoxicated, crimes against the family, and disorderly conduct. We are in fact handling serious felonies in our misdemeanor system. Many of those offenses involve alcohol and personal violence.

Another problem is the lack of resources. We have room for 237 prisoners in our five jails. That includes space for both pre-trial detention and convicted offenders. Two of our jails are in such poor condition that they are used only for individuals who are arrested and held until they are brought before the court. Obviously we have no choice but to focus on community sentencing, where individuals are kept in the community under supervision.

We are also concerned about victim rights and helping offenders so that they do not offend again. Finally, we are concerned with the cycle of violence, community justice, individual and family responsibility, and promoting Navajo common law as the law of preference of the Navajo Nation.

Some of these issues should sound familiar. Today, there are many innovative approaches to crime, including restorative justice programs, community justice projects, victim-offender mediation, and drug courts. As I have learned about those kinds of programs over the past several years, something struck me: They sound so familiar. What are those programs? Many are in fact different forms of peacemaking. I hope that as a Navajo I don't sound like the Russians, who claim they invented all kinds of things first. However, I've got to say it - Indians invented the basic concepts those programs use. As I've gone around North America and various parts of the world to talk about peacemaking with indigenous leaders, I see them nod their heads when I describe what we do. Peacemaking is an indigenous institution.

How will this program work? Essentially we are going to divert criminal defendants out of our western criminal justice system into peacemaking and then into treatment, under the supervision of our probation officers. The points of diversion will be prior to charge (deferred prosecution), at the time of arraignment or an initial appearance, prior to sentencing, and even after sentencing.

Who will be eligible? We decided that given the success of people choosing their own problems as walk-ins that we would not say that we can handle one kind of case and not others. We submitted an application for drug court funding to the United States Justice Department, and we will not be able to handle violent offenses or weapons-related cases under that program if it is funded. However, instead of using classes of cases as our eligibility standard, we decided to identify certain kinds of people who may be eligible.

This program is designed for both adult and juvenile offenders. No one will have a "right" to enter it. It is going to be a tough program, and not every one will be able to do what we require. What is that? First, a defendant will have to waive the right to a speedy trial if that person enters the program without a guilty plea. At minimum, a candidate will have to accept responsibility for the act which underlies the charge. Second, the offense must involve drugs or alcohol. Third, the participant must make a commitment to make restitution to any victim, and the participant will have to produce family members to make certain restitution is paid. Fourth, the participant must bring his or her family into the process. If there are no family supporters, the participant must have some kind of support group. Fifth, the participant must promise full cooperation with all phases of the diversion. That will include paying any program fee for peacemaking, counseling or treatment and obeying all conditions of diversion set by the court.

Once a participant enters the program, he or she will go into peacemaking. There will be peacemaking sessions which involve the defendant and the defendant's relatives, the victim (if the victim consents) and the victim's family, and a community peacemaker. If a victim does not choose to participate, that person can be represented by relatives. The purposes of the peacemaking session are to make participants face their relatives, their victim, the peacemaker and, more importantly, face themselves.

There may be those who might think that this is being "soft on crime." There are those who expect punishment, humiliation, and shaming for people who break the law. Peacemaking is not "soft" at all. When I was a trial judge, it was frustrating, because when a defendant would plead guilty, I would try to get the defendant to explain what happened. I seldom got much. In peacemaking, participants are going to have to explain their actions in front of their victims and the victim's relatives and in front of their own families. It may or may not be appropriate for a judge to shame or humiliate a defendant. However, it is very appropriate for family members to do it as they ask exactly why their relative did what he or she did. The important thing, however, is that peacemaking isn't just a way to shame an offender. It is a way to give an offender a chance to re-enter the community after completing certain steps for self-improvement. "Competency building" is what they call it in other programs. Sometimes you hear people us the term "reintegration" to describe this process.

Another modern element of this program will be that treatment experts can be brought into peacemaking. Traditionally, peacemaking is based on the Navajo concept of planning. Planning is in fact a central element of traditional Navajo justice. The product of the peacemaking sessions will be a specific plan for the participant to rehabilitate himself or herself. It may involve restitution, community service, alcohol counseling or treatment, traditional ceremonies, and other steps which are appropriate to the participant and to the situation. Community service is a visible sign that a defendant is paying the community back for the offense.

Once a plan is in place, a probation officer will monitor the participant's completion of the action items in the plan. The probation officer will also make reports to the court on a participant's progress. If the participant does not carry out the action items, the probation officer will make a decision to return the participant and family to peacemaking, seek the advice of the court, or refer the participant to the normal criminal justice process. Probation officers will work with participant's families so they can guide their relative.

While this may look like a restorative justice program or a drug court, it has unique elements. One of them is family involvement, where family members will serve as "traditional probation officers." This program will involve communities so they can take responsibility for their own problems. It will foster both individual and family responsibility for both victims and offenders.

One of the problems with the standard criminal justice methods using probation officers, social workers and treatment professionals is that defendants do not trust them. It is hard to make someone cooperate with a stranger who is an authority figure. Too often, a criminal defendant will not listen to a judge or anyone else in the criminal justice system. However, we believe that defendants will listen to their relatives. They will listen to peacemakers. They will listen to their community members. Following preparation in peacemaking, and with the involvement of relatives or a support group, defendants will enter programs prepared to cooperate with them.

These are the major elements of the Judicial Branch Healing and Community Justice Policy. It is designed to combine the best of the old and the new and to make our peacemaking and probation functions more efficient.

At end, we are trying to do more to not only deal with crimes after they have happened, but to prevent crime. Half the Navajo Nation population is under age 20, and one-quarter of the entire Navajo population is age nine and under. We want to help offenders deal with their problems by making them face their victim and themselves. We want to keep children out of the cycle of violence. We want a more effective partnership with Navajo communities. We are starting this program on a shoestring. Hopefully, we will get drug court funding to get it off the ground. If not, we are going to proceed anyway.

This is a logical extension of the original peacemaking program. We have learned a lot over the past sixteen years, and we are going to put our knowledge to work. I have been called upon to respond to the rise of gangs, child abuse and neglect, increasing violent crime, and a wide range of other social ills. The Navajo Nation leadership wants effective action, but given declining Navajo Nation resources and federal neglect in funding our basic operations, that is difficult to do. Despite that, we have a plan.

I decided to unveil this policy here today because of something very important. The state judges of Northern Arizona have been very cooperative and supportive as we discuss mutual problems. I want them to know what we are doing. I want this policy to be visible so we can get support for it. I want this plan to work, so I ask all of you, as friends and supporters, to help us as we try to more effectively respond to crime and social problems.