Native Americans in our Courts

This page is being developed as part of Improving Access to Justice for Native Peoples in State Courts Program and includes the perspectives from the Navajo and Pueblo languages represented in this project.

Video Documentary on Project

Navajo Team Collaborators:

Frank Morgan, Translator & Trainer
Blanche Raymond, Certified Navajo Interpreter, Staff with the Farmington Magistrate Cour
Joanna Manygoats, Certified Navajo Interpreter

Pueblo Team Collaborators:

Prof. Creel, Director of the Southwest Indian Law Clinic, UNM School of Law
Sarah Pino from Zia Pueblo, Former Education Director for the Pueblo of Zia
Judge William Johnson, Tribal Court Judge, Isleta Pueblo
Diane Williams, Keres Language Teacher, Cochiti Pueblo
Dr. Christine Sims, Associate Professor, UNM College of Education, Acoma Pueblo

What can the judge and attorneys do to improve communication and the flow of the proceeding?

Video Transcription

Judges and attorneys can find ways to improve communication and the flow of proceedings.

I think Judges need to be patient and be willing to communicate with attorneys, interpreters but also be aware that our languages and some of our words, there's no translation . . . . all of these terms that are now coming . . . from mainstream society, it's not something we've grown up knowing, using, those are not our words so I think judges/attorneys need to be mindful of that.

And then just again, just because we know how to speak English, a lot of us are more common basic English and not big words. So when clients are being asked a question, they might not know what it means and if there's not a word to translate it then you know, you're kind of stuck . . . . So even the Tribe’s interpreting might be a little different. . . .

The judges should at the beginning of a proceeding by introducing him and what his role is. Explain the type of proceeding and what the roles of each of the players are. The attorneys, any witnesses and the defendant’s role in the proceeding. That would be the judge’s tip, to take the time to do that explanation before he elicits any testimony.

And for the attorneys to also when they're presenting their case again, be as clear as possible and take their time explaining or speaking what it is they're offering to the court so that the defendant or the witness that's a non-English speaker or a Native speaker through the interpreter understands the question or the statement that's being made. So there's no delays in what did he mean . . . or what did that mean. To try and make it as succinct and as clear as possible so that the interpreter’s job is easier. I think that would be the best thing for an attorney.

Additional Suggestions

• Attorneys and judge should slow down by explaining situations and procedures, i.e. Motion, Questioning witnesses, and explaining laws pertaining to a certain crime. When LEP Navajos do not know what is going on they will not answer questions very well.

• Explaining to defendants, plaintiffs, and witnesses that a hearing is usually specific to one element. For example, child custody, that not everything involved in the Divorce is to be discussed. When a Navajo being interrogated begins to talk he or she will include things unrelated to the main question. This wears down the interpreter.

• Some traditional Native language speakers do not know how to ask questions, they start to tell what they think, or start to blame people, etc. There has to be a way to keep statements or testimonies focused on the essential points in the questions.

• Most defendants do not know how to assist their attorneys to prepare the case. Some individuals will make statements inconsistent with their attorney’s case.

What are cultural considerations that judges need to take into account when dealing with a defendant who speaks the a Native Language?

Video Transcription

Even fluent speakers of two languages may need to take some time to figure out how certain terms can best be interpreted from one language to another.

Tribal governments traditionally have had their own forms of jurisprudence so the way in which you explain concepts like guilty/not guilty in English might not be quite the same for instance in a Native language. Because the ways in which we deal with those kinds of things may be very different. So I think this is the challenge of interpreters especially in Judges and Attorneys need to understand then that process of translation isn't always a quick one to one correlation of terms.

I think Judges need to . . . be aware that our languages and some of our words, there's no translation. And we would have to go back to the English language because all of these terms that are now coming for or from mainstream society, it's not something we've grown up knowing, using, those are not our words so I think judges, attorneys need to be mindful of that. . . .

. . . Any time you're communicating across cultures with different concepts and different words and sounds there's going to be an opportunity for a misinterpretation.

. . . there's a myth to say there's a one to one translation. So given that there isn't a verbatim the interpreter is going to have to use these concepts. . . .

. . . it's my responsibility as the attorney . . . to check in with the interpreter and say is he or she understanding? Is this concept translating? Does this make sense basically but it's also the interpreters responsibility to ask me questions and say, “are you trying to say X or are you trying to say Y?" . . . .

. . . I would hope the interpreter would not use a word for word translation if there isn't a word that explains all of those legal concepts that are embodied in the word guilt but instead the attorney and interpreter together would explain what's happening in the arraignment and explain what responses are appropriate.

Navajo Cultural Traits

Eye contact: Traditional Navajo parents teach their children not to look directly into another person’s eyes. They believe that a person’s eyes have the ability to affect or sway someone’s beliefs and actions. Therefore, the Defendant and witnesses may look downwards when Judge, Attorney, or other Court personnel are talking to him or her. The judge and attorneys can look at them, but they will not look directly back at the speaker.
Timid: Most older Navajo will tend to be timid, quiet, and not aggressive. They are in a place (court) where everything even people are foreign and alienating. Language spoken in the courtroom are intimidating (frightful, forceful, and threatening).
Frequently, Navajos with limited English proficiency would not know how to explain him or herself or crime they’ve committed, even when the question and answer is interpreted. In most cases they will just plead guilty, they may or may not have committed any crime, they may have been blamed, and was near the scene of the crime. Often, defendants with limited English proficiency don’t know and understand the court system, procedures, practices, and formality, etc
Many Navajos are unfamiliar with their rights, Miranda Right, constitutional right, specific to any alleged crimes. They do not understand that there are rights that authorities must honor.
Typically, Navajo people are not familiar with court etiquette when speaking to judges, lawyers, and men and women, i.e. saying Your Honor, Sir, madam.
A person might look to another (daughter, son, or relative) to help make a decision concerning their situation.
Navajo speaking defendants tend to tell their side of the whole story almost immediately. They do this even though they are told, “to remain silent” in their advice of rights. Navajo individuals do not know how to work with their lawyers.
Speakers of Native languages with limited English proficiency don’t understand the implications and things related to an alleged crime committed.
Generally speaking, Navajo defendants do not have ready access to any amount of money. They are under the impression that if they pay the fines they are forgiven and will be free of any wrongdoing. For example, when a person is ordered to pay DWI fines, sentenced to attend DWI School, ordered to attend counseling sessions, that individual will many times believe that he or she is free and that their record is clean.

What are some examples of Native cultural traits that may be misinterpreted in court?

Video Transcription

Because judges deal with diverse cultures, it is important to recognize Native cultural traits that are frequently misinterpreted.

. . . . Cultural traits include thinking through a question and the responses and all the possible reactions before you speak out loud. This may take time . . . . Native people they understand authority and the need to respect . . . .

Tone and volume are also going to be very different and the judge may misinterpret someone who is speaking softly as someone who is trying to be deceptive . . . there's an expectation that people when they're confident and commanding they speak loud, that's not in the Native trait. . . . It's really inappropriate for you to be loud to defend yourself.

Sometime Natives will not look directly into the eye of an authority as a form of respect and that may be seen as, by a judge as a weakness, a disrespect, an avoidance. So a judge should always remember a defendant because they're not looking them directly in the eye and demanding justice so to speak or being very assertive should not take that as a negative and become either ineffective in their decision, their analysis of the answer, a bias and try to take it as a characteristic that they need to be patient with and considerate of.

Sometimes there'll be questions that will go to cultural aspect and belief of the defendant that they are reluctant to answer or explain the meaning of. Let's say they have a deep spiritual belief in something and . . . in the American culture it may not be something as important to the Native thinker and practitioner and is unable to either answer or can't answer in fact.

Many of our languages, Pueblo languages especially have their own unique aspects and differences . . . many people describe them as softly spoken languages. You can be forceful in a Native language but it sometimes doesn't carry the same weight that English does. So what does that mean for a client who might respond in English but . . . he's using it in the way he's used to using his own Native language.

It might mean for example a person speaks softly in English when the expectation from the other side of the table so to speak is, well how come this person isn't responding forcefully. Does it mean he doesn't care. . . or maybe he's not intelligent enough to understand what's going on here. . . .

Their outward demeanor and how they carry themselves when they're speaking or speaking to people in authority positions may be very different. You know the direct eye contact is one that has been mentioned before. Your tone of voice is another one. How you answer and carry yourself even physically could be misinterpreted as someone who either doesn't care or doesn't appreciate the seriousness of a court preceding. All of these things are often times part of people's body language and that may be very different for a Native people.

But for Native Americans, especially Native peoples here in New Mexico, it really is important people understand those basic differences.

Navajo Cultural Traits

If a Navajo person is looking downwards and not looking at the person who is talking to him or her. The person is concentrating and listening. It is a showing of respect for an authority and remorse for any type of wrongdoing.
A Navajo person will often speak softly to show kindness and respect.
When there is complexity and uncertainty a Navajo person may not attempt to explain situations and behaviors. Court procedures, justice system, terminology are complicated and uncertain so the person will provide very limited explanations.
Older Navajo people dress very conservatively. A man, especially, may wear a head band. It shows respect for authority. However, in the society today, a young Navajo man who is obviously anti-social and disobedient may wear a head band and in this incident the young man is not respectful of others and authority.
Navajo people wear turquoise jewelry in public or formal places and for most Navajo people a courthouse is a formal place. It is like a man wearing a suit and tie or woman wearing a formal outfit.
Older Navajo people will ask their children and relatives for help in decision-making on how to address a situation.
Older Navajo people often tell long stories about events and situations when they are asked to explain things.

Are there any specific topics that Natie People may find more difficult than non-Navajo to discuss in public?

Video Transcription

Some topics that arise in court situations may be more difficult to discuss in public for Native peoples than for non-Natives.

. . . specific topics that Native people find more difficult than non-Natives to discuss in public. . . . Sex and sexual situations, religious and ceremonial issues, death and murder, family relationships, kinships and complexities and these aren't just a matter of being shy. It's not a matter of being demure. These can range from things that are taboo, to confidential, to inappropriate outside of the community. So it's not a matter of cajoling the person to say the word or the body part. . . . It might really be a cultural rule that these things shouldn't be spoken about.

Some of the things . . . we find relevant in all of our languages are . . . serious things like death. How you talk about death. How you talk about things like murder. Those might be some very serious areas in addition to things related to our own ceremonial life in communities. I've heard people try to explain away, oh Pueblo people are very secretive people, well it's not being secret for secret's sake.

There's a reason why for example certain knowledge is not available to everyone in a community, cultural knowledge. There's a reason why certain genders will have some cultural knowledge and another gender might not. And all of this is part of the cultural, social/cultural society that Pueblo people come from. So that translates often into not sharing that information to the public . . . .

So when people are asked about, pointedly about certain things that deal with cultural traditions, they might not be ready and reticent to share that information and so here again, I think it falls on the responsibility of the people who are involved with these court proceedings to at least have some background knowledge about who these clients are.