Table of Contents
The peoples of the Pueblo of Laguna3 have always maintained an oral tradition.4 With the codification of laws and the enactment of a Constitution, the Pueblo of Laguna has preserved its traditional practices and customs by referencing their importance within written documents governing tribal affairs. The Preamble of the Pueblo of Laguna Constitution immediately sets forth the Tribe’s commitment to preserve its traditional laws, stating that the purpose of the constitution is to “protect our Pueblo self-government and our rights, including land and water rights, liberties, benefits, traditional practices and custom,…” Throughout the Articles of the Laguna Constitution, the Law and Order Code and other Pueblo Ordinances, the drafters made numerous references to the authority and preservation of traditional law, practices and customs.
The Elderly Code of the Pueblo of Laguna provides a comprehensive appreciation of this reverence for tradition and tradition holders, as it states in relevant part:
OUR ELDERS, preserving OUR PAST in their memories, influencing OUR PRESENT when we dare to listen, aiming us toward OUR FUTURE, rooted in their wisdom, they deserve our respect, not our abuse… Elders are valuable resources to the Pueblo and custodians of tribal history, culture and tradition and they are the best hope of the Pueblo to pass on the Pueblo’s history, culture and tradition to children of the Pueblo… Anytime this code conflicts with customary or traditional law, the customary or traditional law shall control.5
The Pueblo of Laguna is comprised of six Villages: Paguate, Encinal, Mesita, Seama, Paraje, and Laguna. The Village of Laguna has always been the main Village and is currently the capital of the Pueblo.6 Members of the Pueblo elect a Governor and Tribal Council Members.7
Prior to the Constitution, traditional customs of governance were maintained by the Mayordomos of the six respective Villages; there had been no central figures, such as a governor and Tribal Officers, elected by the entire pueblo.8 Traditionally, Mayordomos would get together and resolve issues that were affecting all the villages or issues that arose between villages.9
The enactment of the first Pueblo of Laguna Constitution in 1908, created the Pueblo Council that unified the six villages.10 Although the villages did not traditionally share a central governing body, new leadership roles were created in order to staff the Pueblo Council and they were “vested with traditional governing authority.”11 Traditionally, those individuals selected to hold leadership roles performed dual functions.12 They served in the capacity of tribal leaders of the Pueblo and they also presided over ceremonial activities in conjunction with the spiritual leaders of the Pueblo.13 By custom and tradition, those leadership roles were held by male members of the pueblo;14 no women were allowed to hold leadership positions in Pueblo government.15
Over time, with the adoption of amendments to the constitution, the Pueblo began to make changes to its governmental structure and official positions.16 Initially the positions of Governor, First Lt. Governor, Second Lt. Governor and Staff Officers were created.17 In later years, the positions of Council Secretary, Treasurer and Interpreter were also created.18 The Constitution does not specify that being male is a requirement of fulfilling a leadership role;19 however, it does use the pronoun “he” in describing the responsibilities of officeholders.20 The Constitution also states that, “any member of the Pueblo who is qualified to hold office according to traditional standards, shall be eligible to be a Staff Officer or a Village Representative.”21 Recently, there has been a lot of debate over what is meant by the term “traditional standards.”22
In 1996, voters in Paguate, one of the six villages that make up the Pueblo of Laguna, nominated Emily Cheromiah for the position of Tribal Treasurer.23 The sitting Pueblo Council members at that time exercised their Constitutional authority to screen prospective candidates24 by refusing to accept Cheromiah’s nomination.25 The council members said that because the Pueblo had always had male officials, female officials were not a part of Laguna tradition.26 Supporters of the female nominee noted that “political tradition was separate from religious tradition and could change with the times.”27 The council members decided to allow voters to cast their ballot on a referendum28 that would allow women to hold non-Staff Officer29 positions on the Pueblo Council. Voters overwhelmingly supported the change.30 In December of 1998, Laguna voters elected Emily Cheromiah as Pueblo Council Secretary, making her the first woman to hold public office in the Pueblo of Laguna.31
The Mayordomos Ordinance describes the responsibilities of village members and the discretion of Mayordomos and other village officials in enforcing the ordinance.32 Some of the member responsibilities include mandatory attendance of males at village meetings, participation in community service and the general maintenance of the village, and payment of assessments for neglecting responsibilities.33 Some of the responsibilities of the village officials include determining land assignments, granting residency to non-members and overseeing safety and health hazards.34 Traditionally, records of village affairs were not recorded in writing.35 While there has recently been a rise in the awareness of oral tradition,36 some village officials are beginning to keep written records of which village members are in “good standing” for land assignment purposes.37
Some of the criteria that are being weighed to determine whether a member is in “good standing” include: 1) whether he attends village meetings on a regular basis; 2) the community work the individual has done or contributed to; 3) whether any fines or dues have been levied against the member and if the member has paid them; and 4) other factors.38
Although men and women are eligible to receive land assignments, village officials only evaluate men for “good standing.”39 While women are not currently evaluated using the “good standing” standard, there may be a time when a village may want to re-evaluate the application of this standard to men only.40 It should also be noted, however, that even if one of the villages decides to change its views on the application of the “good standing” standard toward women, such a decision will not be binding on any of the other villages. Each village would have to make its own determination on this particular issue.41
The Law and Order Code is the foundation of the codified laws for the Pueblo of Laguna. While many sections, such as the Criminal Code, have been expanded into their own set of codes, the 1968 version of the Law and Order Code is still in operation.42 At the time of this writing, it is currently before the Pueblo Council for review.43 Some other Pueblo of Laguna Ordinances include: Curfew Ordinance (1960), Educational Scholarship Ordinance, Disposition of Minors’ PCD Funds (1972), Drug Ordinance (1976), Housing Amendatory Ordinance (1977), Mayordomos’ Ordinance (1978), Good Samaritan Act (1979), Amended Enrollment Ordinance (1982), Adoption Code Resolution #11-82 (1982), Family Protection Code (1998), and the Criminal Code (1999).
The 1999 Criminal Code was created by a committee consisting of the Chief Judge, the Chief of Police, a lawyer, the Director of the Laguna Service Center, and the Tribal Prosecutor.44 The Criminal Code sets out the various offenses that can be brought or filed against tribal and non-tribal members. It also sets out the various penalties for each of the offenses. Since the Criminal Code addresses offenses that are more contemporary in nature, traditional elders were not included in the drafting process.45
The establishment of the Pueblo of Laguna Family Protection Code in June of 1998, recognized domestic violence as a community problem with community obligations.46 It is a matter of Tribal policy that “such violent and damaging behavior is not to be tolerated nor ignored.”47 The Pueblo of Laguna was one of 57 Indian Tribal governments to receive a STOP Violence Against Indian Women grant from the Department of Justice.48 For fiscal year 1998, Laguna received $74,249 “to develop and strengthen tribal law enforcement, prosecutorial strategies and victims services.”49 Although criminal cases are contemporary in nature, it is unclear whether a “strengthened prosecutorial strategy” might come into conflict with traditional law and customs shaping some of the procedures of the Pueblo Court.
Traditional Law is very important to the Pueblo of Laguna.50 However, the Pueblo Court system is itself a more contemporary device for settling conflicts and maintaining peace within the Tribe.51 In order to preserve Laguna customs, the Tribal Court has deferred certain cases back to the village officials for resolution, especially those cases that come within the village jurisdiction.52 This precept is explicitly preserved in the Laguna Constitution, which states in relevant part:
Any dispute existing or arising between or among persons which cannot be settled by the parties affected may first be brought before the Village Officers who shall try to have the parties settle the matter by giving their advice. If the interested parties cannot, with the advice of the Village Officers, settle the matter in dispute, the matter may be submitted to the Pueblo Courts by one (1) or more of the parties in accordance with the procedures provided in ordinances of the Pueblo. The pursuit of this process shall be discretionary with the interested parties.53
Traditionally, the Mayordomos (village elders) run family meetings and resolve the disputes that occur within the village.54 Because the Mayordomos know the histories of the families, they can provide a historical context to the resolution of a dispute.55 The Mayordomos run the meetings and allow everyone an opportunity to contribute.56 “No one argues during the process, they just talk it out, and eventually the truth is reached and there is no longer any conflict.”57 Parties come to a self-realization about the resolution that needs to take place.58
When parties come before the Tribal Court, the sitting judge will usually ask if the parties have already attempted to resolve the dispute through their Village Officials.59 If they have not, the Court will send the dispute back to the Village Officials for resolution.60
The Mayordomos method of dispute resolution is primarily an oral tradition and no written records are kept of the parties, the process or the outcome.61 Today, a couple of the villages have started keeping records of decisions in land assignment disputes so that they will not have to deliberate over that particular parcel in the future. However, they do not keep a record of how those decisions were made.
Today 90% of the cases in Pueblo court concern issues that are more contemporary in nature.62 One reason for this is that most disputes are resolved at the village level through traditional customs.63 When complainants approach the Pueblo Council to resolve a matter they are referred to their respective village officials.64 When disputes are heard in the Tribal Court, parties are not required to be represented by an advocate or an attorney at law.65 If parties choose to have representation, they must bear the costs on their own.66
Judges on the Laguna Pueblo Court do not need to be members of the Pueblo of Laguna nor do they need to be Indian;67 however, they must possess a general understanding of Indian Law, and it is preferred, but not mandatory, that judges possess an understanding of the Pueblo’s traditions and customs.68 Some of the other minimum qualifications include, but are not limited to: must be of good character, dependable, courageous, must have respect in the community;69 must be capable of making wise and considerate decisions in all cases,70 and they must have sufficient educational background.71
The court usually has one Native American judge sitting on the Pueblo Court in order to keep a link to traditional customs.72 Currently the Pueblo Court consists of Chief Judge Frank Cerno, Jr., a Laguna member, and Associate Judge Marsha Green, a non-Indian.73 Judge Cerno started his term in December 1999.74 During the 1980’s he was the Chief Judge of the Laguna Pueblo Court. He then he sat on the bench at the Acoma Pueblo Court. Judge Green began her Judgeship in November 1999, after twenty years of service as an attorney for the Pueblo of Laguna.75 Chief Judge Cerno presides over criminal and juvenile matters and Judge Green handles all civil cases.76
In determining cases, the judge shall take cognizance of and rely on applicable law that may be found in the following order of precedence:
In the case of a dispute between members of different villages, the courts also try to have the dispute resolved by the village officials.78 One case referred back to the village was a divorce settlement concerning livestock. The wife claimed the livestock was half hers on the basis of the New Mexico community property law; however, the husband claimed the livestock was given to him by his grandfather and should therefore remain with him in accordance with custom and tradition.79 The case has not resurfaced in the court, however Judge Cerno suspects it may since the village officials of each spouse support their respective member.80
Before Judge Green took the bench, she had observed Pro Tem Judge John Gates, a Native American but non-Laguna member, weigh the use of traditional laws in support of an outcome in cases before the court. She noted one case in which traditional custom was used to support visitation rights of grandparents to visit their grandchildren, when the parents of the child objected.81
When an injury results from “carelessness,” the injured party may only recover a judgment that “shall fairly compensate” them.82 If the injury was “deliberately inflicted, the judgment shall impose an additional penalty upon the defendant for the benefit of the party damaged.”83
Although the Law and Order Code explicitly states that judges shall first rely on the “Laguna Ordinances and customs,” it does not clarify which of these has greater authority when placed side by side.84 It is possible that the testimony of an elder, which supports the application of traditional custom to resolve a criminal case, would lead to a different outcome than that constructed by the criminal code. It is unclear whether the outcome arrived at through a more traditional process would outweigh the outcome directed by the criminal code. There have not been any cases of this type heard by the Tribal Court and if one were brought, it would be a case of first impression.85
Since the Laguna Tribal Court is a “court of record,” all proceedings before the Court are electronically recorded.86 The Court keeps the recordings and transcripts of the hearings and they can be requested by any of the litigants to a cause of action.87 The Tribal Court keeps a record of the Appellate Court decisions that may be referred to and relied upon in future cases that involve the same issues or controversies.88
The Pueblo of Laguna Constitution states, in relevant part: “Any party dissatisfied with a judgment or final decision of the Pueblo Courts shall have the right to appeal such judgment or decision to the Court of Appeals,…”89 The Governor and the six Village Representatives of the Pueblo Council currently serve as the Court of Appeals.90 The Court of Appeals gets assistance from the law firm hired by the Tribe.91 The decision of the Court of Appeals “shall be final.”92
There are no treaties between the Pueblo of Laguna and the United States.93
The Pueblo of Laguna has not participated in the international law arena.94
The Pueblo of Laguna has received numerous federal grants designed to supplement its Pueblo justice system. In October of 1999, United States Attorney General Janet Reno announced an initiative to improve Law Enforcement in Indian Country.95 The comprehensive Indian Country Law Enforcement Initiative (ICLEI) gave Native American Tribes and Pueblos $89 million in grants to improve criminal justice services and reduce the rate of crime among the 1.4 million Native Americans living on or near Indian Lands.96 The Pueblo of Laguna was one of ten tribal governments in New Mexico to receive ICLEI funds.97 While the Pueblo of Zuni received nearly $4 million, the Pueblo of Laguna received $559,031, which was the second highest amount of the ten grants given to tribes in New Mexico.98 It is unclear whether this funding will greatly influence the traditional jurisprudence of the Laguna Pueblo Courts.99
The Pueblo of Laguna is one of two Indian Nations to be designated official “Weed and Seed” sites.100 The other is the Northern Cheyenne Nation.101 Both Tribes have “adopted a comprehensive crime eradication and community development strategy” funded by the Department of Justice.102 In 1995 residents of the Laguna Pueblo became involved in a project that will “examine the strengths and weaknesses of justice systems in Indian Country, while involving the community in the process of identifying problems and suggesting solutions.”103 The specific goals of the project are to “increase prosecution of cases which have ‘fallen through the cracks’ due to jurisdictional issues; to develop correctional services that reservations need such as sex offender treatment; and to improve drug and alcohol treatment.”104
Although the Pueblo of Laguna has been invited to utilize the Southwest Intertribal Court of Appeals,105 the Pueblo had declined since it has its own appeals process in place.106 However, there appear to be other opportunities for intertribal collaboration.
The Department of Justice and the Department of the Interior, through the ICLEI, worked with tribal governments to develop a project called the Comprehensive Indian Resources for Community and Law Enforcement (CIRCLE).107 The CIRCLE Project “aims at promoting an Intertribal exchange of ideas and experiences and fostering coordination among the Tribes for more efficient use of resources.”108 Additionally, the Bureau of Justice Assistance will foster the development of inter-tribal courts so tribal communities can share limited resources.109
In gathering sources for this profile, the author relied on documents created by the Pueblo of Laguna government and on an interview with Chief Judge Frank Cerno. The author noticed that much of the information provided by Chief Judge Cerno was also contained in the Pueblo of Laguna’s governmental documents. The author cited to these documents when the information provided by Chief Judge Cerno overlapped with these primary texts.
15 Interview with Chief Judge Cerno, supra note 2; but see Robert Laurence, Martinez, Oliphant and Federal Court Review of Tribal Activity Under the Indian Civil Rights Act, 10 CAMPBELL L. REV. 411, 438 n.15 (1988) (citing PAULA GUNN ALLEN, SACRED HOOP 41-44 (1986) (offering another perspective on the reasoning behind the history of male leadership in modern tribal politics)):
Leslie Silko, in her beautiful and brilliant essay, “Landscape, History, and the Pueblo Imagination,” mentions the Spider Woman story. There are many versions of Spider Woman, but in this version, from Silko’s Laguna Pueblo, the female spider possesses the power of generative thought. She discovers that everything she can think of instantly comes into being. She begins by thinking up three new Thought Women to help her with her great task of dreaming up the universe. Right away, three new spiders burst into existence. Now we have the magic number four, and the four of them together dream up all of creation. And so the world as we know it comes not from some masculine, omnipotent and frequently cruel and perverse God, but from the minds of female spiders. Thought Women.
16 Interview with Chief Judge Cerno, supra note 2. 17 Id. 18 Id. 19 PUEBLO OF LAGUNA CONST. art. III (The Pueblo Council, Staff Officers and Settlements); Id. art. VI, §§ 1-5. 20 Id. art. VI, §§ 3-4. 21 Id. art. VII, § 3 (emphasis added). 22 Interview with Chief Judge Cerno, supra note 2. 23 See Leslie Linthicum, Woman’s Election A Laguna 1st, ALBUQUERQUE J., Dec. 29, 1998, at A1. 24 See PUEBLO OF LAGUNA CONST. art. VII, § 1(d). 25 See Linthicum, supra note 21. 26 See Id. 27 Id. 28 See PUEBLO OF LAGUNA CONST. art. IV, § 2(u). 29 See Id. art. III, § 2 (“The Governor, First Lieutenant Governor, Second Lieutenant Governor, Head Fiscale, First Fiscale, and Second Fiscal are the cane-bearing Staff Officers of the Pueblo and , as such, are vested with traditional governing authority.”); compare Id. art. III, § 3 (“The Secretary, Treasurer and Interpreter shall perform the administrative functions provided in Article VI, Sections 3, 4, 5, and 6. They shall also provide advice and assistance to Staff Officers, as required.”). 30 See Linthicum, supra note 21. 31 Compare Eric Henderson, Ancestry And Casino Dollars In The Formation Of Tribal Identity, 4 RACE & ETHNIC ANCESTRY L.J. 7, 24 n.90 (1998) (“In the 1870s the Keresan Pueblo of Laguna had incorporated at least two Anglo-American men who had married Laguna women. One, Walter Marmon, later became Pueblo Governor.” (citing Edward H. Spicer, Cycles of Conquest 177 (1962))). 32 See PUEBLO OF LAGUNA MAYORDOMOS’ ORDINANCE (1978). 33 See Id. §§ 1-5. 34 See Id. §§ 7-10. 35 Interview with Chief Judge Cerno, supra note 2. 36 Id. 37 Id. see also PUEBLO OF LAGUNA CONST. art. IX, § 3 (“Assignments shall be approved by the Pueblo Council in the manner and subject to the terms and conditions provided in such ordinances. The assignment procedures shall include the approval by appropriate village officials . . .”). 38 Interview with Chief Judge Cerno, supra note 2; see also PUEBLO OF LAGUNA MAYORDOMOS’ ORDINANCE §§ 1(g) and 8(a). 39 Interview with Chief Judge Cerno, supra note 2. 40 Id. 41 Id. 42 Id. 43 Id. 44 Id. 45 Interview with Chief Judge Cerno, supra note 2. 46 PUEBLO OF LAGUNA FAMILY PROTECTION CODE, ch. 1, § 102 (1998). 47 Id. 48 News Release from U.S. Department of Justice, Vice President Gore Announces Native American Tribes to Receive $4.9 Million to Combat Violence Against Women (June 15, 1998). 49 Id. 50 Interview with Chief Judge Cerno, supra note 2. 51 Id. 52 Id. 53 PUEBLO OF LAGUNA CONST. art. V, § 5. 54 Interview with Chief Judge Cerno, supra note 2. 55 William Bluehouse Johnson, Lecture at the University of New Mexico School of Law in Law of Indigenous Peoples Class (Nov. 11, 1999). 56 Id. 57 Id. 58 Id. 59 Interview with Chief Judge Cerno, supra note 2. 60 Id. 61 Id. 62 Id. 63 Id. 64 Id. 65 Interview with Chief Judge Cerno, supra note 2. 66 See PUEBLO OF LAGUNA CONST. art. V, § 6. 67 See PUEBLO OF LAGUNA LAW AND ORDER CODE, ch. 1, § 3(b)(1) (1968). 68 See Id. at ch.1, § 3(b)(7). 69 See Id. at ch.1, § 3(b)(4). 70 See Id. at ch.1, § 3(b)(5). 71 Id. at ch.1, § 3(b)(7). 72 Interview with Chief Judge Cerno, supra note 2. 73 Id. 74 Id. 75 Interview with Associate Judge Marsha Green, at the Pueblo of Laguna Courts (Nov. 18, 1999). 76 Interview with Chief Judge Cerno, supra note 2. 77 PUEBLO OF LAGUNA LAW AND ORDER CODE, ch. 1, § 4 (emphasis added). 78 Interview with Chief Judge Cerno, supra note 2. 79 Id. 80 Id. 81 Interview with Judge Green, supra note 73. 82 PUEBLO OF LAGUNA LAW AND ORDER CODE, ch. IV, § 26(b). 83 Id. at ch. IV, § 26©. 84 But see PUEBLO OF LAGUNA ELDERLY CODE, § 2 (“Anytime this code conflicts with customary or traditional law, the customary or traditional law shall control.” (emphasis added)). 85 Interview with Chief Judge Cerno, supra note 2. 86 Id. 87 Id. 88 Id. 89 PUEBLO OF LAGUNA CONST. art. V, § 7. 90 Interview with Chief Judge Cerno, supra note 2. 91 Id. 92 PUEBLO OF LAGUNA CONST. art. V, § 7; see also PUEBLO OF LAGUNA LAW AND ORDER CODE, ch. I, § 8(e). 93 Interview with Chief Judge Cerno, supra note 2. 94 Id. 95 News Release from the U.S. Department of Justice, Attorney General Reno Announces Major Initiative to Improve Indian Country Law Enforcement (Oct. 13, 1999). 96 Id. 97 See Patrick Armijo, Zuni Lands Nearly $4 Million To Combat Crime, ALBUQUERQUE J., October 14, 1999, at B3. 98 Id. 99 Interview with Chief Judge Cerno, supra note 2 (noting that the half a million that went to the Pueblo of Laguna will not have a huge impact on the Pueblo Court system). 100 Tribal Justice Programs: Hearing Before the Senate Indian Affairs Committee (June 3, 1998) (Testimony of Attorney General Janet Reno, U.S. Department of Justice), available in 1998 WL 288964 (F.D.C.H.) at *7. 101 Id. 102 Id. 103 It Has Come to Our Attention, 59 FED. PROBATION 94 (1995). 104 Id. 105 See Christine Zuni, The Southwest Intertribal Court of Appeals, 24 N.M. L. REV. 309 (1994) (providing a detailed history, purpose, goals of SWITCA). 106 Interview with Chief Judge Cerno, supra note 2. 107 News Release from U.S. Department of Justice, supra note 93. 108 Id. 109 Id.
The conqueror has demanded that the tribes that wish federal recognition and protection institute ‘democracy,’ in which powerful officials are elected by majority vote. Until recently, these powerful officials were inevitably male and were elected mainly by nontraditionals, the traditionals being until recently unwilling to participate in a form of governance imposed upon them by right of conquest. . . . Now dependent on white institutions for survival, tribal systems can ill afford gynocracy when patriarchy – that is, survival – requires male dominance.