The 2002 Diné Fundamental Laws: The First Known Legal Codification of the Rights of Nature

By Zelda Clegg

Special thanks to Dr. Raymond Austin of Northern Arizona University for his review of this article.

Earth law, also known as ecocentric law, is perhaps the fastest growing environmental law movement in the world. As the movement continues to grow, informing the work of Earth Law Center (ELC) and an increasing number of environmental groups worldwide, it is important to recognize its origins in Indigenous cultures, knowledge, and wisdom. Such recognition is not merely appropriate, it’s also necessary to counteract literature that conflates the Rights of Nature movement with all of Earth law and portrays it as having begun in the West in the 1970s and ‘80s.

This blog post examines this issue and highlights that, even within the Rights of Nature movement, it was an Indigenous Nation, the Diné (Navajo), that passed the first known legal codification of Nature’s rights.

What Is the Rights of Nature Movement?

The Rights of Nature movement recognizes that Nature, like humans, has inherent rights. The movement acknowledges humanity’s collective responsibility to protect Nature.

Rights of Nature can manifest in a variety of legal forms. The rights of certain natural entities to flourish (for example, the rights of rivers to flow freely) and the recognition of legal personhood for Nature exemplify practical applications of Rights of Nature.

Any level of the law can recognize the Rights of Nature. It can take hold as anything from a declaratory resolution in a community to national constitutional change. This is an expanding area—currently, the Rights of Nature is used as leverage in legal decisions, but the movement seeks to give Nature a voice in the legal system and bring a RoN perspective into different areas of law.

An Incomplete Framing

Published Western literature portrays developments from the 1970s to ‘90s, primarily in the United States, as the beginning of the Rights of Nature movement—and indeed, tremendous progress was made during these decades. Scholars including Christopher Stone, Roderick Nash, and Thomas Berry wrote about the Rights of Nature. For example, see Stone, Christopher, “Should Trees Have Standing?—Toward Legal Rights for Natural Objects” (1972) and, generally, Thomas Berry’s religious and ecological scholarship.

In terms of actual passage of Rights of Nature ordinances or legislation, Tamaqua Borough in Schuylkill County, Pennsylvania, is often referenced as the first community to recognize the Rights of Nature in law. In 2006, the community successfully utilized the Rights of Nature framework to prohibit toxic waste disposal.  

It is essential to recognize, however, that while late-twentieth-century Western society is where the movement began in terms of its articulation in modern legal and jurisprudential theory, that story does not adequately represent the cultural, philosophical, or spiritual roots of Earth law. Nor does it give credit where credit is due: to the Indigenous Nation that was in fact the first government to enact a legal recognition of the Rights of Nature.

2002 Diné Fundamental Laws

The 2002 Diné Fundamental Laws is the first known codification of the Rights of Nature in a legal context. The original text is in Navajo Nation Council Resolution No. CN-69-02 (November 1, 2002). The Council’s enactment was incorporated into the Navajo Nation Code at Title 1, sections 201 – 206. The entire Diné Fundamental Laws is a written codification of ancient, unwritten Navajo philosophy and laws, Navajo worldview, and respect for the sacredness of all creation.

The Fundamental Laws outlines different rights and laws of the Navajo Nation and its people. It codifies the Diné Life Way. Diné, translating to “The People,” is the traditional name the Navajo people use to identify themselves. The Fundamental Laws addresses a myriad of priorities of the Navajo People and turns ancient, unwritten Navajo philosophy and laws into a more recognized form of law (at least a recognized form by Western standards). The Fundamental Laws also mentions different types of laws: natural law, customary law, common law, and traditional law.

Section 205(C), “Natural Law,” states in part, “All creation, from Mother Earth and Father Sky to the animals, those who live in water, those who fly and plant life have their own laws and have rights and freedoms to exist[.]” Section 205(D) says, “The Diné have the sacred obligation and duty to respect, preserve and protect all that was provided for we were designated as the steward for these relatives through our use of the sacred gifts of language and thinking.” Taken together, these statements reflect the Rights of Nature movement in practice.

Section 205(F) states, “The rights and freedoms of the people to the use of the sacred elements of life as mentioned above and to the use of land, natural resources, sacred sites, and other living beings must be accomplished through the proper protocol of respect and offering and these practices must be protected and preserved for they are the foundation of our spiritual ceremonies and the Diné life way.” Section 205(G) continues: “It is the duty and responsibility of the Diné to protect and preserve the beauty of the natural world for future generations.” These two subsections reflect s the interconnected relationships between the Navajo people and the natural world. The Diné are the guardians and protectors of the environment.

Differentiating Types of Diné Law

Vital to understanding the impact of the 2002 Diné Fundamental Laws is knowing the subtle differences between the phrases “customary law,” “common law,” “natural law,” and “traditional law.”

Scholar Kenneth Bobroff discusses how the Fundamental Laws combines these four elements and explains the significance of the preservation of each one. He takes language from Council Resolution No. CN-69-02, which states that the laws “provide sanctuary for the Diné life and culture, our relationship with the world beyond the sacred mountains, and the balance we maintain with the natural world.”[1]

Diyin Diné e Bitsaadee Beehaz’aanii, or Diné Customary Law, refers to the six “rights and freedoms” of the people. These laws discuss holistic education and living in balance with creation, amongst other things. Native American courts refer to Native custom as Native common law. Navajo Custom, according to the Navajo Supreme Court, “refers to a higher law. It means something which is ‘way at the top’; something written in stone so to speak . . . something like the Anglo concept of natural law.” The Navajo Nation Council views Diné customs as an immutable set of laws.

Nahasdzáán dóó Yádilhil Bits’áádéé’ Beehaz’áanii, or Diné Natural Law, seeks to establish principles that guide Diné based upon the “cycles and changes of the elements of creation.” Diné Natural Law gets at the heart of some of the ideas of the Rights of Nature. This is where the Code Laws discusses how the earth and all its elements must be respected, honored, and protected. Diné Natural Laws recognizes the sacred obligation of the Diné.

Diyin Nohookaáá Diné Beehaz’áanii, or Diné Common Law, is perhaps the most difficult of the four types of law to understand. The Navajo Common Law Project defines it as “verbally established Diné principles that encompass the moral practices of respect, honor, and trust in the relationship.” This particular section of the law, unlike the rest, makes no mention of values or principles that the Diné hold. Rather, it is a series “of normative ‘must’ statements which themselves reference Diné Common Law.” This section is primarily a directive to the Navajo people (and to non-Navajos who live on or visit the Navajo Nation). It directs the people to honor and respect ancient Navajo customary laws and modern written laws that make up the 26 Titles of the Navajo Nation Code, and to respect Navajo Nation government and its institutions.

Diyin Bits’áádéé, Beehaz’áanii, or Diné Traditional Law, speaks to supreme fundamental principles that guide the Diné. Traditional law speaks to physical, mental, and spiritual well-being. The section, under this form of law, discusses information about leaders and their responsibilities, government structure, and religion (as Westerners would call it).

The 2002 Diné Fundamental Laws has further been interpreted by leaders of the Navajo Nation and legal scholars. A Navajo Chief Justice even referred to the Fundamental Laws as akin to a human rights declaration. The Navajo Nation Supreme Court, concerning the Fundamental Laws, held “‘[w]e interpret statutes consistent with Navajo Common Law. We have applied this mandate when the plain language of a statute does not cover a particular situation or is ambiguous but have applied the plain language directly when it applies and clearly requires a certain outcome.’”[2]

Professor Alexandra Huneeus of the University of Wisconsin School of Law wrote that the codified customary law then acts as a binding guide to statutory interpretation in cases where a statute is unclear.

Recognition and Impact

Acting under the Diné Fundamental Laws, the Navajo Nation sued the Environmental Protection Agency following a 2015 pollution event affecting the Animas River in Colorado. The Animas River flows into the San Juan River, which turns into the Colorado River that flows through the Grand Canyon. These rivers border the Navajo Nation. In a telephone interview with the New York Times, Russell Begaye, then President of the Navajo Nation, said, “[t]his river is the main river that gives life to the whole region, not just those who live around the river, but the entire nation. This is our lifeblood. It is sacred to us.”

Though never directly linked to the 2002 Diné Fundamental Laws in the interview, you can see how the Navajo Nation views itself as a protector or guardian of a river that it holds sacred. In that sense, they are acting upon the Diné’s obligation to act on their sacred “duty to respect, preserve and protect all that was provided for we were designated as the steward.” The lawsuit and the quote from the Navajo Nation President reflect the concepts of natural law coming into play and being acted upon, even if they are not specifically mentioned.

Conclusion

The concepts codified in the 2002 Diné Fundamental Laws were present long before colonization. These concepts exemplify the reciprocal relationship between humans and the natural world in traditional Indigenous cultures. Western Rights of Nature movement must remember the true origins of the Rights of Nature movement. Given the violent history of colonization, Western scholars must view themselves as students of the traditional Indigenous worldview rather than being the first to implement the Rights of Nature. The 2002 Diné Fundamental Laws provides insight into the future of Rights of Nature work and how the movement can continue to build.

Notes

[1] Bobroff, Kenneth. "Diné Bi Beenahaz'áanii: Codifying Indigenous Consuetudinary Law in the 21st Century." Tribal Law Journal 5, 1 (2004). https://digitalrepository.unm.edu/tlj/vol5/iss1/2

[2] Tso v. Navajo Hous. Auth., 8 Navajo Rptr. 548, 557 n.1 (2004).