Top Navajo Court Convenes at HLS

The Supreme Court of the Navajo Nation held oral arguments in Harvard Law School’s Ames Courtroom yesterday, marking just the second time in the school’s history that it played host to the court’s hearing of a live case.

The most active tribal court in the U.S., the Navajo Supreme Court is composed of three appointed justices who form the second tier of a two-tier judicial system.

The matter before the court yesterday involved a clash between traditional Navajo and U.S. corporate law, determining whether a person can act as the representative of a corporation if he or she is not licensed to practice law in the Navajo Nation or any other jurisdiction.

The case, Perry v. Navajo Nation Labor Commission (NNLC), began in June 2005 when Melinda Perry brought an action before the NNLC alleging that she had been wrongfully discharged. She had been employed at the Utah Navajo Development Council.

Rebecca Benally, a director with the council, represented her group “pro se,” meaning that she took the case before the NNLC herself, even though she had no legal training.

But before the NNLC could decide on the issue, Perry appealed to the Navajo Supreme Court, challenging Benally’s authority to represent the development council in a legal capacity.

Yesterday’s case addressed whether Benally could act as a legal representative of the council and whether the U.S. corporate law definition of “corporate personhood”—which would allow her to act in such a position in an American court—could be incorporated into the court’s deliberations.

Perry’s lawyer, Edward M. Dobson, argued that Benally would have had the right to represent herself in court if she were Perry’s employer, and thereby one of the parties to the case.

But since Perry’s employer was a corporation, Dobson said, Benally had no right to act as its representative before the NNLC. “It is well established that a layperson may not represent a business entity,” Dobson wrote in a brief before the court.

Raymond C. Etcitty, the chief counsel for the NNLC, argued that the issue was moot because the dispute between the Perry and her employer had already been settled.

“This is a hypothetical concern. I ask that you dismiss [the case] and then we can all go home,” Etcitty said to laughs.

Dobson responded that the court should decide the case as though a controversy still existed, in order to create a precedent. He said that “the jurisdiction of who can practice law lies here before this court. The [NNLC] does not have that authority.”

Etcitty countered by saying that if Benally could not represent the development council, a dangerous precedent would be set. “This would be read so broadly that it would hinder the ability of the Navajo Nation to operate,” Etcitty said. “Many new corporations are starting up, and to say that they need an attorney to speak on their behalf would hinder economic development.”

The only other time the court has held oral arguments at the Law School was in 1999.

“In an age of global conflict we have much to learn from the Navajo peacemaking court system,” Law School Dean Elena Kagan said in introducing the court.

—Staff writer Paras D. Bhayani can be reached at pbhayani@fas.harvard.edu.

—Staff writer Ariadne C. Medler can be reached at amedler@fas.harvard.edu.