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Navajo Dispute Resolution, Trump’s Tweets and the Lessons of Little Big Horn

by Michael A. Zeytoonian
February 2017

Dispute Settlement Counsel by Michael Zeytoonian.

Michael A.  Zeytoonian

I recently read a Daily Good story about Navajo Indian peacemaking, a seven-step process focused on restoring relationships, a notion the Navajo refer to as “K’e”.  This approach has four foundational values, the four Rs: Respect, Relationships, Responsibility, and Reverence.  Some of the tenets of this approach to resolving disputes include the shared goal of reaching the best possible outcome for everyone involved, affirming the best that we are as human beings, and the goal of realigning ourselves with what Navajo refer to as “Hozho”, the state of harmony and grace.  These tenets are strikingly similar to principles of the great religions and philosophies:  Shalomfrom Judaism, Namaste from Eastern philosophy, Love God; love one another – the essence of Christ’s teachings.

The American Indian Way of Life

This enlightened and civilized way of resolving disputes comes from a race that the American government and people of the mid-nineteenth century labeled as “savages”.  Those same “savages” saw the Great Spirit (God) in every person and everything in nature; treated everything with a sense of sacred, and cared for the environment with which they co-existed.  One cannot think about the American Indian way of life without lamenting how much we lost when that culture disappeared from the North American continent.

Fast forward 150 years to Donald Trump, the man that our civilized, advanced and sophisticated nation has just elected to be its President.  I don’t know what kind of president Mr. Trump will turn out to be and how history will view him.  What I can say is that so far, what Donald Trump has shown us as his approach to “making American great again” is on every level a far cry from the values and ways of our native Americans – the only inhabitants of this land who were not once immigrants.

The lessons of the Battle of Little Big Horn

Mr. Trump’s approach to dealing with others and supposedly protecting and advancing American interests takes me back to another time in history and a similar approach to resolving conflict, exemplified by George Armstrong Custer.  The lessons of the Battle of Little Big Horn give us a glimpse at what happens when the massive egos and partisan emotions of men in leadership positions take an adversarial approach: Ill-advised decisions and disastrous results.

Last year, my wife and I visited Little Big Horn, where Custer and all his men suffered annihilation.  Like at Gettysburg, you experience an eerie and sad silence on that field today, looking across at the graves of the Americans who died in that tragic battle.  Next to them is a monument to the Indians who carried the day in decisive fashion, in defense of their land and their way of life.  Just beyond is a National Cemetery of hundreds of additional graves of more Americans who died in all those battles that followed the Civil War.

What If

As a student of history, I can’t help but notice the similarities between the positional and adversarial tenor of Mr. Trump, fueled by arrogance and ego, and that of Custer and the Union Army back then.  As a lawyer that has “laid down my weapons” of litigation and trial and replaced them with principled negotiation and helping people resolve disputes using non-adversarial processes, I can’t help but think about the “what ifs” of this tragic page in American history.

What if the combatants in that dispute of 150 years ago had focused on satisfying their respective interests instead of looking at each other as enemies?   The interests of the Native Americans and the new American settlers were consistent with each other.  They could have been satisfied at the same time.  Instead, the parties got caught up in their “positions”, which were in conflict:  “We (both) want the land.  They are a threat to us.”

What if they had asked each other two more key questions before they went to battle:  Why do you want the land?  What is the important interest you have that this land satisfies for you?

Those American pioneers were in pursuit of the gold that was supposedly in the Black Hills upon which the Indians roamed freely.  Their interest was the gold.

The Native Americans had absolutely no interest in the gold. Nor did they want to stake out the land and build homes on it.  They wanted to continue their way of life as the great nomadic horse people of their era.  They had no need to own the land, but only to be free to be good stewards of it and live in harmony with it so that it continued to meet their basic needs.

Mr. Trump’s “America First” Mentality

Any good Collaborative Lawyer, Settlement Counsel or Mediator would have immediately recognized that the interests were not in dispute and could both be satisfied if the parties to the dispute had only used principled negotiation (also known as interest-based negotiation).  Instead, the Americans chose the adversarial approach, and as a result, hundreds of young men on both sides lost their lives.  The chance of forging an important relationship between peoples, one that both would have benefited from, and a sharing between cultures, was lost.  A way of life and an entire race would soon be lost.  How many times since then has that same story line repeated itself, all around the world?

And yet here is Mr. Trump, ready to do battle with anyone he perceives to be in the way of his “America First” mentality, even if they have shared interests with the United States.

Lessons of A Silent Field

Today, in the quiet place where that battle took place, there is nothing for miles that the eye can see.  The land that men fiercely fought about and died upon is uninhabited.  Not a home or building stands there.  And the tragic irony is that today, it is not owned by Americans who purportedly were intent on settling there.  Nor is it owned by the Lakota or Sioux tribes.  It’s an uninhabited, desolate part of the Crow Indian reservation lands.

The adversarial, positional approach that played out in the Battle of Little Big Horn resulted in a lose-lose in which no one’s interests were ever met. One can only hope that the lessons of this silent field are not drowned out by the undisciplined tweets and sound bytes to the contrary, and are not lost on those of us living 150 years later, in pursuit of peaceful co-existence of all people.

We are the positive result of millions of years of evolution.  Act like it.” 

Biography


Michael A. Zeytoonian is the Founding Member and Director of Dispute Resolution Counsel, LLC and is a lawyer, mediator and ombudsman. He is formerly a partner and now Of Counsel at Hutchings, Barsamian, Mandelcorn & Zeytoonian, LLP, in Wellesley Hills, MA. He specializes in employment law, business law, special education law, mediation, collaborative law and administrative law. He is admitted to practice in the state and federal district courts of Massachusetts and New York (Southern District) and the state of Connecticut. He has served as a mediator on the MWI panel in the district courts and on the BBA panel in the Boston Municipal Court.

He is a member and Massachusetts Bar Association and is chair of the MBA’s ADR committee and a member of the labor/employment section. He is a Past President (2006-2007) and member of the Massachusetts Collaborative Law Council, the International Academy of Collaborative Professionals and the New England Association for Conflict Resolution. He writes frequently on collaborative law and alternative dispute resolution (ADR) and has trained lawyers and presented in collaborative law and ADR around the U.S., Canada and Ireland. He has lectured at Northeastern University School of Law, Suffolk University School of Law, New England Law Boston, UMASS School of Law and Roger Williams University School of Law.

He served as Assistant Attorney General in the Office of the Attorney General of the State of New York, as a deputy overseeing litigation in the State Counsel Bureau in Westchester, Rockland and Putnam Counties and working on consumer advocacy cases. Prior to his work at the Attorney General’s Office, he was an Assistant County Attorney in the Westchester County (NY) Law Department, in the litigation and family court bureaus. His litigation work at both the County Law Department and the Attorney General’s office included cases in employment; labor; state, county and local municipal matters; environmental law; construction, administrative and tort law, and the prosecution of child abuse and neglect cases. His undergraduate education was at Boston College and Iona College, where he received his Bachelor of Arts degree is history and education. He earned his J. D. from Pace University School of Law with a Certificate in Environmental Law in 1990.



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