0010 Titles 1 to 5 (2010)

0010 Titles 1 to 5 (2010)

NAVAJO NATION CODE ANNOTATED

Title 1

General Provisions

Chapter 1. Navajo Nation Bill of Rights

United States Code

Civil action for deprivation of rights, 42 U.S.C. §§ 1983, 1984.

Equal rights under the law, 42 U.S.C. § 1981.

Federal civil rights law regarding public accommodations, facilities, education

and programs, employment and voting, 42 U.S.C. § 2000a et seq.

Offenses, prosecutions and proceedings in vindication of rights, 42 U.S.C. §§

1985–1991.

Organization of Indian tribes, constitution and bylaws, 25 U.S.C. § 476.

Annotations

1. Authority of Indian governments

While Congress retains paramount authority to legislate for and enforce its

laws on all the tribes in certain respects, it has recognized the authority of

Indian governments over their reservation and if this power is to be taken away

from them it is for Congress to do it. Oliver v. Udall (1962) 306 F.2d 819,

cert. denied 372 U.S. 908.

Indian tribes have a status higher than that of states and are subordinate and

dependent nations possessed of all powers as such only to the extent that they

have expressly been required to surrender them by the superior sovereign, the

United States. Native American Church v. Navajo Tribal Council (1959) 272 F.2d

131.

2. Tribal immunity

"We disagree with TBI's position that 7 N.T.C. § 204(a) authorizes suits

against the Navajo Tribe if a violation of civil rights is asserted. Neither

the Navajo Bill of Rights, 1 N.T.C. §§ 1–9, nor 7 N.T.C. § 204(a) explicitly

authorizes suits against the Navajo Nation. [ ... ] ... [T]his is a breach

of contract action brought against the Navajo Nation, therefore, arguments of

civil rights abuse under the Navajo Bill of Rights is inappropriate. [.... ]

Instead of arguing civil rights violations, TBI should have argued whether any

provisions in the contract waived the Tribe's immunity from suit."

TBI

Contractors v. Navajo Tribe, 6 Nav. R. 57, 61 (Nav. Sup. Ct. 1988).

3. Property interests

"The Navajo Nation Election Code, as it applies to these schools, does not

affect property interests.

It only affects management issues which are of

interest to the Navajo Nation as a sovereign. Accordingly, we hold that there

was no 'taking' by the imposition of new regulatory requirements and thus no

violation of due process." Rough Rock Community School, Inc. v. Navajo Nation,

7 Nav. R. 199, 201 (Nav. Sup. Ct. 1996).

§ 1. Other

referendum

rights

not

impaired;

deletion

or

abridgment

only

by

public

The enumeration herein of certain rights, shall not be construed to deny

or disparage others retained by the people. No provision of this Chapter, the

Navajo Nation Bill of Rights, shall be abridged or deleted by amendment or

otherwise, except by referendum vote of the Navajo electorate, in accordance

with applicable provisions of the laws of the Navajo Nation.

History

CD–59–86, December 11, 1986.

CO–63–67, October 9, 1967.

Note.

1 N.N.C. § 1 was formerly codified at 1 N.N.C. § 8.

Annotations

1. Purpose

"The Navajo Nation Bill of Rights (1986) is a fundamental, overriding statute

which, by its own terms and necessary implication, allows judicial review to

decide whether another law or an act of the Navajo Nation Government is void

because of a violation of fundamental rights.

We have judicial review

authority because the Navajo Nation Council made the policy decision that there

would be a fundamental law which is superior to other laws, and which cannot be

changed without a vote of the Navajo People."

Bennett v. Navajo Board of

Election Supervisors, 6 Nav. R. 319, 324 (Nav. Sup. Ct. 1990).

2. Bills of attainder

" ... [T]here was no 'punishment' and thus, there was no bill of attainder in

violation of 1 N.T.C. § 3, in the disqualification of MacDonald as a candidate

[pursuant to 11 N.N.C. § 8(A)(7)]." MacDonald v.Redhouse, 6 Nav. R. 342, 345

(Nav. Sup. Ct. 1991).

"Nixon v. Administrator of General Services, 433 U.S. 425 (1977), recognizes

three tests for determining whether punishment is present.

These tests are

adopted by this Court. The first test is the historical experience test. This

test determines punishment in terms of what historically has been regarded as

punishment for purposes of bills of attainder and bills of pains under the law

of England and the United States.

The historical test may include what

historically has been regarded as punishment under Navajo common law. [.... ]

The second test is the functional test.

This test considers the extent to

which a law challenged as a bill of attainder furthers any nonpunitive purposes

underlying the law. The third test is the motivational test. The inquiry here

is whether the legislative record evinces a legislative intent to punish." In

re: Certified Questions II, 6Nav. R. 105, 119 (Nav. Sup. Ct. 1989).

"We adopt the common definition of bill of attainder;

therefore, under the

Indian Civil Rights Act and Navajo Bill of Rights, a bill of attainder is a law

that legislatively

determines guilt

and inflicts punishment upon an

identifiable person or group without the protections of trial in the Navajo

courts.

This definition has two elements:

first, an element of punishment

must be inflicted by some tribal authority other than tribal judicial

authority; and second, an element of specificity, that is, a singling out of

an individual or identifiable group for infliction of punishment." In re:

Certified Questions II, 6 Nav. R. 105, 119 (Nav. Sup. Ct.1989).

"A bill of attainder is apparently unknown to traditional Navajo culture."

re: Certified Questions II, 6 Nav. R. 105, 119 (Nav. Sup. Ct. 1989).

In

3. Tribal immunity

"We disagree with TBI's position that 7 N.T.C. § 204(a) authorizes suits

against the Navajo Tribe if a violation of civil rights is asserted. Neither

the Navajo Bill of Rights, 1 N.T.C. §§ 1–9, nor 7 N.T.C. § 204(a) explicitly

authorizes suits against the Navajo Nation. [ ... ] ... [T]his is a breach

of contract action brought against the Navajo Nation, therefore, arguments of

civil rights abuse under the Navajo Bill of Rights is inappropriate. [.... ]

Instead of arguing civil rights violations, TBI should have argued whether any

provisions in the contract waived the Tribe's immunity from suit."

TBI

Contractors v. Navajo Tribe, 6 Nav. R. 57, 61 (Nav. Sup. Ct. 1988).

4. Due process

"The Navajo Nation Election Code, as it applies to these schools, does not

affect property interests.

It only affects management issues which are of

interest to the Navajo Nation as a sovereign. Accordingly, we hold that there

was no 'taking' by the imposition of new regulatory requirements and thus no

violation of due process." Rough Rock Community School, Inc. v. Navajo Nation,

7 Nav. R. 199, 201 (Nav. Sup. Ct. 1996).

§ 2. Equality of rights not abridged by entitlements, benefits or privileges;

nor by affirmative action necessary to support rights of the Navajo People to

economic opportunity

Recognition, enactment, lawful implementation and enforcement of

provisions for specific entitlements, benefits and privileges based upon

membership in the Navajo Nation or in other recognized Tribes of Indians and

affirmative action in support of Navajo or other Indian preference in

employment and business contracting or otherwise necessary to protect and

support the rights of Navajo People to economic opportunity within the

jurisdiction of the Navajo Nation, shall not be abridged by any provision

herein nor otherwise be denied.

History

CD–59–86, December 11, 1986.

Annotations

1. Tribal immunity

"We disagree with TBI's position that 7 N.T.C. § 204(a) authorizes suits

against the Navajo Tribe if a violation of civil rights is asserted. Neither

the Navajo Bill of Rights, 1 N.T.C. §§ 1–9, nor 7 N.T.C. § 204(a) explicitly

authorizes suits against the Navajo Nation. [ ... ] ... [T]his is a breach

of contract action brought against the Navajo Nation, therefore, arguments of

civil rights abuse under the Navajo Bill of Rights is inappropriate. [.... ]

Instead of arguing civil rights violations, TBI should have argued whether any

provisions in the contract waived the Tribe's immunity from suit."

TBI

Contractors v. Navajo Tribe, 6 Nav. R. 57, 61 (Nav. Sup. Ct. 1988).

2. Property interests

"The Navajo Nation Election Code, as it applies to these schools, does not

affect property interests.

It only affects management issues which are of

interest to the Navajo Nation as a sovereign. Accordingly, we hold that there

was no 'taking' by the imposition of new regulatory requirements and thus no

violation of due process." Rough Rock Community School, Inc. v. Navajo Nation,

7 Nav. R. 199, 201 (Nav. Sup. Ct. 1996).

§ 3. Denial or abridgment of rights on basis of sex;

process of Navajo Nation law

equal protection and due

Life, liberty, and the pursuit of happiness are recognized as fundamental

individual rights of all human beings. Equality of rights under the law shall

not be denied or abridged by the Navajo Nation on account of sex nor shall any

person within its jurisdiction be denied equal protection in accordance with

the laws of the Navajo Nation, nor be deprived of life, liberty or property,

without due process of law. Nor shall such rights be deprived by any bill of

attainder or ex post facto law.

History

CD–59–86, December 11, 1986.

CF–9–80, February 7, 1980.

Note.

1 N.N.C. § 3 was formerly codified at 1 N.N.C. § 9.

Preamble.

CF–9–80 contains the following preamble:

"Whereas:

1. The tradition and culture of the Navajo Nation has always

emphasized the importance of the woman in Navajo society; and

"2. Navajo culture and society is both matrilineal and matrilocal;

and

"3. The Navajo Tribal Council by Resolution CO–63–67, of October 9, 1967,

passed the Navajo Bill of Rights; and

"4. No provision was made in the Navajo Bill of Rights for equal protection of

the laws for both men and women;

and

"5. Such a declaration would be in keeping with the tradition of the Navajo

People."

Annotations

1. Interpretation

The proper interpretation of the Navajo Equal Rights guarantee is that there

can be no legal result on account of a person's sex, no presumption in giving

benefits or disabilities gauged by a person's sex and no legal policy which has

the effect of favoring one sex or the other. Help v. Silvers a.k.a. Silver Fox,

4 Nav. R. 46 (Nav. Ct. App. 1983).

2. Presumptions

"Customary usage is therefore viewed as a property interest by the Navajo

Nation."

In re:

Estate of Wauneka, Sr., 5 Nav. R. 79, 81 (Nav. Sup. Ct.

1986).

Under the Navajo Equal Rights Amendment, there can be no presumption, in a

child custody dispute, that a young child should be in the care of the mother.

Help v. Silvers a.k.a. Silver Fox, 4 Nav. R. 46 (Nav. Ct. App. 1983).

3. Tribal immunity

"Due process rights, viewed as quasi-constitutional rights in our system as far

as the Indian Civil Rights Act and Navajo Nation Bill of Rights are concerned,

may be asserted only if one can show the denial of the right to an opportunity

to be heard in a meaningful way." In re: Estate of Plummer, Sr., 6 Nav. R.

271, 276 (Nav. Sup. Ct. 1990).

"The rights protected in the Navajo Due Process Clause are fundamental, but

they are not absolute, limitless, or unrestricted.

They are considered in

light of the enjoyment and protection of rights by all Navajos.

We require

that everyone coming before our courts have an opportunity to be heard at a

meaningful time and in a meaningful way.

That is the right to one's day in

court."

In re:

Estate of Plummer, Sr., 6 Nav. R. 271, 275 (Nav. Sup. Ct.

1990).

"We disagree with TBI's position that 7 N.T.C. § 204(a) authorizes suits

against the Navajo Tribe if a violation of civil rights is asserted. Neither

the Navajo Bill of Rights, 1 N.T.C. §§ 1–9, nor 7 N.T.C. § 204(a) explicitly

authorizes suits against the Navajo Nation. [ ... ] ... [T]his is a breach

of contract action brought against the Navajo Nation, therefore, arguments of

civil rights abuse under the Navajo Bill of Rights is inappropriate. [.... ]

Instead of arguing civil rights violations, TBI should have argued whether any

provisions in the contract waived the Tribe's immunity from suit."

TBI

Contractors v. Navajo Tribe, 6 Nav. R. 57, 61 (Nav. Sup. Ct. 1988).

4. Due process

"Due process under the Navajo Bill of Rights is similar to the same right under

the United States Constitution, in that our courts must provide notice and an

opportunity to be heard, including in custody matters." Miles v. Chinle Family

Court, and concerning Miles, No. SC–CV–04–08, slip op. at 8 (Nav. Sup. Ct.

February 21, 2008); citing, Zuni v. Chinle Family Court, No. SC–CV–63–06, slip

op. at 6–7 (Nav. Sup. Ct. January 12, 2007); Lente v. Notah, 3 Nav. R. 72, 73–

74 (Nav. Ct. App. 1982).

"The Navajo Nation Bill of Rights recognizes liberty as a fundamental right.

Liberty cannot be taken away unless it is done using a fair process ('due

process') and the law must be evenly applied ('equal protection of the law').

For purposes of due process of law under Navajo common law, the right to

participate in the political process is considered a protected liberty right."

Begay v. Navajo Nation Election Administration, No. SC–CV–27–02, slip op. at 3

(Nav. Sup. Ct. July 31, 2002).

" ... [E]lected officials have no property interest in their elective office.

[....

] Thus, fundamental rights are not implicated by the removal of an

elected official from office." Vandever v. The Navajo Nation Ethics and Rules

Office, 7 Nav. R. 356, 358 (Nav. Sup. Ct. 1998).

"The Navajo Nation Election Code, as it applies to these schools, does not

affect property interests.

It only affects management issues which are of

interest to the Navajo Nation as a sovereign. Accordingly, we hold that there

was no 'taking' by the imposition of new regulatory requirements and thus no

violation of due process." Rough Rock Community School, Inc. v. Navajo Nation,

7 Nav. R. 199, 201 (Nav. Sup. Ct. 1996).

"This court has noted that the concept of due process was not brought to the

Navajo Nation by the Indian Civil Rights Act not the Navajo Bill of Rights.

Instead, due process is fundamental fairness in a Navajo cultural context." In

the Matter of the Estate of Goldtooth Begay #2, 7 Nav. R. 29, 31 (Nav. Sup. Ct.

1992).

" ...

[T]here is a strong and fundamental tradition that any Navajo can

participate in the processes of government, and no person who is not otherwise

disqualified by a reasonable law can be prohibited from holding public office.

Therefore, there is sufficient liberty interest for the application of the due

process rule regarding the invalidity of vague statutes."

Bennett v. Navajo

Board of Election Supervisors, 6 Nav. R. 319, 325 (Nav. Sup. Ct. 1990).

"Navajo due process must be interpreted in a way that is beneficial to the

Navajo Nation." Sells v. Espil, 6 Nav. R. 195, 199 (Nav. Sup. Ct.1990).

"The Begays' interest in Mutual Help Housing is a property interest." Begay v.

Begay, 6 Nav. R. 160, 161 (Nav. Sup. Ct. 1989).

"Fair procedure mandates that a defendant shall be properly charged, arraigned,

found guilty and sentenced for an offense that is expressly provided for under

a valid Code section." Begay v. Navajo Nation, 6 Nav. R. 132, 133 (Nav. Sup.

Ct. 1989).

"This Court recognizes that a '[a]' substantial liberty interest is at stake in

sentencing." Begay v. Navajo Nation, 6 Nav. R. 132, 133 (Nav. Sup. Ct. 1989).

"Any due process requirements attendant to placing a Chairman or Vice Chairman

on administrative leave will depend upon a finding that the official's life,

liberty or property interest has been adversely affected by Navajo governmental

action."

In re:

Certified Questions II, 6 Nav. R. 105, 119 (Nav. Sup. Ct.

1989).

"An elected official does not have a property right in public office.

The

office belongs to the voting public. Katenay's due process rights do not stem

from his position as a holder of elected office. His due process rights are

derived from 2 N.T.C. § 4005, which gives him the right to explain to his

constituents the grievances against him and to be voted out of office, or

retained, by persons who were present during his explanation." In re: Removal

of Katenay, 6 Nav. R. 81, 85 (Nav. Sup. Ct. 1989).

"When Navajo sovereignty and cultural autonomy are at stake, the Navajo courts

must have broad-based discretion in interpreting the due process clauses of the

ICRA and NBR, and the courts may apply Navajo due process in a way that

protects civil liberties while preserving Navajo culture and self-government."

Billie v. Abbott, 6 Nav. R. 66, 74 (Nav. Sup. Ct. 1988).

"Therefore, we hold that a civil forfeiture proceeding must provide due process

as set forth in the Navajo Nation Bill of Rights, 1 N.T.C. § 3; the Indian

Civil Rights Act, 25 U.S.C. § 1302(8), and Navajo common law." Begay v. Navajo

Nation, 6 Nav. R. 20, 24 (Nav. Sup. Ct. 1988).

"A person alleged to be in indirect civil or criminal contempt of court must be

notified of the charges, have a right to be represented by counsel, have a

reasonable time to prepare a defense, and have an opportunity to be heard.

[....

] The rules of criminal procedure are also applicable to indirect

criminal contempt proceedings." In the Matter of Contempt of Mann, 5 Nav. R.

125, 128 (Nav. Sup. Ct. 1987).

"The power of Navajo courts to punish for contempt must be exercised within the

bounds of due process embodied in the Indian Civil Rights Act, [ ... ], and

the Navajo Bill of Rights ... " In the Matter of Contempt of Mann, 5 Nav. R.

125, 126 (Nav. Sup. Ct. 1987).

"The rule is that in the absence of special rules of procedure adopted by a

body, or adopted for it by an outside power having the right to do so, its

procedure is governed by parliamentary law."

Mustach v. Navajo Board of

Election Supervisors, 5 Nav. R. 115, 119 (Nav. Sup. Ct. 1987).

"Due process requires that notice of hearing be given sufficiently in advance

of the scheduled date of hearing, so that the party will have reasonable time

to prepare." Mustach v. Navajo Board of Election Supervisors, 5 Nav. R. 115,

119 (Nav. Sup. Ct. 1987).

"We refuse to require compliance with procedural due process for agency

discussions that do not seek to deprive a person of a property right." Yazzie

v. Jumbo, 5 Nav. R. 75, 77 (Nav. Sup. Ct. 1986).

5. Contempt proceedings

" ...

[N]avajo courts must still afford due process protections in direct

contempt proceedings. The judge must advise the contemnor of the charges and

give the contemnor an opportunity to explain the contemptuous conduct.

The

order of contempt must show that the judge saw or heard the conduct

constituting the contempt and that the contempt was committed in the presence

of the court. The order must also state the facts constituting the contempt

and the punishment imposed." In the Matter of Contempt of Mann, 5 Nav. R. 125,

128 (Nav. Sup. Ct. 1987).

6. Trial procedure

"We have never held that a party's right to due process is violated when that

party fails to comply with applicable time limits. [.... ] When a party does

not comply with court rules or abuses court process (as in the failure to

comply with discovery orders), the courts have the power to rule that the party

has given up his right to be heard." Yazzie, et al. v James, et al., 7 Nav. R.

324, 328 (Nav. Sup. Ct. 1998).

"The due process clause of the Navajo Nation Bill of Rights required the

special prosecutor to prove to the trial court, in an adversarial hearing, that

the evidence it used in preparing its case and the evidence offered at trial

were not based on or derived from the information MacDonald gave to any

official under either a formal or informal grant of immunity." Navajo Nation

v. Peter MacDonald, Jr., 7 Nav. R. 1, 13 (Nav. Sup. Ct. 1992).

"To require a judge, who did not preside over the trial, to enter findings and

a final decision in a case with which he is unfamiliar, is to deny the parties

due process of law. [.... ] We hold that, within the Navajo Nation, only the

judge who presided at the trial shall enter findings of fact, conclusions of

law and the final judgment or order."

Benally v. Black, 5 Nav. R. 137, 138

(Nav. Sup. Ct. 1987).

7. Notice

"The fundamental rights involved [when and how a court accepts a plea to a

criminal charge] are the right to not be deprived of liberty without due

process of law, and the right to be informed of the nature and cause of

accusation in criminal proceedings." Stanley v. Navajo Nation, 6 Nav. R. 284,

285 (Nav. Sup. Ct. 1990).

"The concept of due process was not brought to the Navajo Nation by the Indian

Civil Rights Act, 25 U.S.C. § 1302(8), or the Navajo Nation Bill of Rights, 1

N.T.C. § 3.

The Navajo people have an established custom of notifying all

involved parties in a controversy and allowing them, and even other interested

parties, an opportunity to present and defend their positions. This custom is

still followed today by the Navajo people in the resolution of disputes."

Begay v. Navajo Nation, 6 Nav. R. 20, 24 (Nav. Sup. Ct. 1988).

"We hold only that the forfeiture of an automobile demands notice and a

hearing. Navajo court proceedings must comply with the Navajo Nation Bill of

Rights and the Indian Civil Rights Act, and as such, we must ensure compliance

with procedural and substantive due process before someone is deprived of their

private property."

Begay v. Navajo Nation, 6 Nav. R. 20, 24 (Nav. Sup. Ct.

1988).

"It is an established rule that notice to the counsel of record serves as

notice to the client."

Chavez v. Tome, 5 Nav. R. 183, 189 (Nav. Sup. Ct.

1987).

8. Retroactive and ex post facto laws

"The election reforms of 1989 and 1990 are not ex post facto laws, made to

punish MacDonald, but laws which are well within the competence of the Council

and are designed to promote the integrity of public office." MacDonald v.

Redhouse, 6 Nav. R. 342, 346 (Nav. Sup. Ct. 1991).

"Ex post facto laws are prohibited by the Navajo Nation Bill of Rights at 1

N.T.C. § 3." MacDonald v. Redhouse, 6 Nav. R. 342, 345 (Nav. Sup. Ct. 1991).

"There is no property right to hold public office, although a candidate may

have a due process right which arises out the Navajo Nation election law."

Bennett v. Navajo Board of Election Supervisors, 6 Nav. R. 319, 325 (Nav. Sup.

Ct. 1990).

" ... [T]he Navajo Nation has no statute which authorizes an award for past

child support in a paternity action." [ ] "Due process under the Navajo Nation

Bill of Rights, 1 N.T.C. § 3 (1986 amend.), and the Indian Civil Rights Act, 25

U.S.C. § 1302(8) (1968), dictates that Mariano not be ordered to make up for

something which he had no legal duty to do originally." Descheenie v. Mariano,

6 Nav. R. 26, 29 (Nav. Sup. Ct. 1988).

9. Statutory due process rights

"However as in Katenay, a statutory scheme can be the source of due process

rights for an elected official. [ ...

] There are a number of basic

protections that the Navajo Tribal Council should afford while placing a

Chairman or Vice Chairman on administrative leave. These are: (1) the Navajo

Tribal Council must act in a properly convened session with a quorum as

established in the Navajo Tribal Code; (2) an agenda must be properly adopted

by the Council, although procedures for presentation of resolutions and for

voting on resolutions are within the power of the Tribal Council;

(3) the

resolution placing a Chairman or Vice Chairman on administrative leave must

pass by a majority vote of the Navajo Tribal Council present, [.... ]; and

(4) the resolution placing a Chairman or Vice Chairman on administrative leave

must not be a bill of attainder." In re: Certified Questions II, 6 Nav. R.

105, 119 (Nav. Sup. Ct. 1989).

10. Jurisdiction

"Given the clear mandate of the long arm statute [7 N.N.C. § 253a], the

District Court would have to find the statute invalid as a violation of

Appellees' due process rights under the Navajo Bill of Rights." Navajo

Transport Services, et al. v. Schroeder, et al., No. SC–CV–44–06, slip op. at 6

(Nav. Sup. Ct. April 30, 2007).

"If the long arm statute [7 N.N.C. § 253a] allows jurisdiction over Appellees,

the District Court must further analyze whether the long arm statute is

consistent with Navajo concepts of fairness embedded in the Due Process Clause

of the Navajo Bill of Rights. As stated previously by this Court, the Navajo

concept of due process is unique, in that it applies concepts of fairness

consistent with Navajo values." Navajo Transport Services, et al. v. Schroeder,

et al., No. SC–CV–44–06, slip op. at 7 (Nav. Sup. Ct. April 30, 2007).

"The due process provision in the Navajo Bill of Rights is not a statute which

gives this Court its appellate jurisdiction." Vandever, v. The Navajo Nation

Ethics and Rules Office, 7 Nav. R. 356, 357 (Nav. Sup. Ct. 1998).

"In the Navajo Nation, the [minimum] contacts of a defendant shall be evaluated

on a case-by-case basis ... " Sells v. Espil, 6 Nav. R. 195, 198 (Nav. Sup.

Ct. 1990).

11. Vagueness

"Statutes which confer rights grounded upon Navajo liberties must contain

ascertainable standards.

That is, they must sufficiently describe standards

and requirements for the exercise of the right so that the ordinary person will

know what they are and be able to satisfy them." Bennett v. Navajo Board of

Election Supervisors, 6 Nav. R. 319, 327 (Nav. Sup. Ct. 1990).

12. Civil judgments

"We hold that Section 3 of the Navajo Nation Bill of Rights prohibited her

incarceration for failure to pay the judgment on a contract as an unreasonable

deprivation of liberty."

Pelt v. Shiprock District Court, No. SC–CV–37–99,

slip op. at 7 (Nav. Sup. Ct. May 4, 2001).

" ... [G]iven the difficulty in framing a general rule, we will restrict our

focus to the question of whether a judgment debtor who fails to pay a civil

judgment on a contract for a loan may be incarcerated for failure to pay the

judgment, whether the judgment debtor is indigent or not."

Pelt v. Shiprock

District Court, No. SC–CV–37–99, slip op. at 3–4 (Nav. Sup. Ct. May 4, 2001).

13. Bill of attainder

" ... [T]here was no 'punishment' and thus, there was no bill of attainder in

violation of 1 N.T.C. § 3, in the disqualification of MacDonald as a candidate

[pursuant to 11 N.N.C. § 8(A)(7)]." MacDonald v.Redhouse, 6 Nav. R. 342, 345

(Nav. Sup. Ct. 1991).

"Nixon v. Administrator of General Services, 433 U.S. 425 (1977), recognizes

three tests for determining whether punishment is present.

These tests are

adopted by this Court. The first test is the historical experience test. This

test determines punishment in terms of what historically has been regarded as

punishment for purposes of bills of attainder and bills of pains under the law

of England and the United States.

The historical test may include what

historically has been regarded as punishment under Navajo common law. [.... ]

The second test is the functional test.

This test considers the extent to

which a law challenged as a bill of attainder furthers any nonpunitive purposes

underlying the law. The third test is the motivational test. The inquiry here

is whether the legislative record evinces a legislative intent to punish." In

re: Certified Questions II, 6 Nav. R. 105, 119 (Nav. Sup. Ct. 1989).

"We adopt the common definition of bill of attainder;

therefore, under the

Indian Civil Rights Act and Navajo Bill of Rights, a bill of attainder is a law

that legislatively

determines guilt

and inflicts punishment upon an

identifiable person or group without the protections of trial in the Navajo

courts.

This definition has two elements:

first, an element of punishment

must be inflicted by some tribal authority other than tribal judicial

authority; and second, an element of specificity, that is, a singling out of

an individual or identifiable group for infliction of punishment." In re:

Certified Questions II, 6 Nav. R. 105, 119 (Nav. Sup. Ct. 1989).

"A bill of attainder is apparently unknown to traditional Navajo culture."

re: Certified Questions II, 6 Nav. R. 105, 119 (Nav. Sup. Ct. 1989).

In

14. Habeas corpus

"This Court holds that the jail sentence imposed does not have a definite term.

The Petitioner was jailed for 55 days although he kept informing the District

Court that he does not have the money, nor can he raise the money if he is

incarcerated. Under these circumstances, the sentence is contrary to 17 N.N.C.

§ 223, constituting cruel and unusual punishment." Cody v. Greyeyes, No. SC–CV–

09–09, slip op. at 4 (Nav. Sup. Ct. March 11, 2009).

"We therefore hold that the Navajo Nation Bill of Rights prohibited

Petitioner's incarceration for his inability to pay the court imposed fines and

fees in a criminal proceeding; under these circumstances, the sentence

constitutes cruel and unusual punishment and an unreasonable deprivation of

liberty." Cody v. Greyeyes, No. SC–CV–09–09, slip op. at 5 (Nav. Sup. Ct. March

11, 2009).

"The Court now clarifies that written reasons are not required, as long as the

district court judge clearly and adequately explains his or her reasons for

denying release to the defendant, and such reasons are available in the record

of the case. The primary purpose of requiring reasons is so that the defendant

understands why he or she will continue to be held pending trial, and may

contest those reasons before the district court, and, if necessary, before this

Court in a habeas corpus proceeding." Dawes v. Eriacho, No. SC–CV–09–08, slip

op. at 4–5 (Nav. Sup. Ct. May 5, 2008).

"By violating Rule 15(d) [of the Navajo Rules of Criminal Procedure], the

District Court detained Dawes without notice or opportunity to be heard, and

also therefore violated her right to due process under the Navajo Bill of

Rights." Dawes v. Eriacho, No. SC–CV–09–08, slip op. at 7 (Nav. Sup. Ct. May 5,

2008).

§ 4. Freedom of religion, speech, press, and the right of assembly and petition

The Navajo Nation Council shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof;

or abridging the

freedom of speech, or of the press;

or the right of people peaceably to

assemble, and to petition the Navajo Nation government for a redress of

grievances.

History

CD–59–86, December 11, 1986.

CO–63–67, October 9, 1967.

Note.

1 N.N.C. § 4 was formerly codified at 1 N.N.C. § 1.

Cross References

The Foundation of the Diné, Diné Law and Diné Government;

seq. (CN–69–02), contains the following preamble:

1 N.N.C. § 201 et

"Whereas:

"6. The Navajo Nation Council finds that the acknowledgment, recognition and

teaching of these laws do not contravene 1 N.N.C. § 4; the incorporation of

these fundamental laws into the Navajo Nation Code is not governmental

establishment of religion nor is it prohibiting the free exercise of religion;

the Navajo Nation Council and the Diné have always recognized and respected the

principle of these fundamental laws and the Diné Life Way that all Diné have

the right and freedom to worship as they choose; and the Navajo Nation Council

and the Diné recognize that the Diné Life Way is a holistic approach to living

one's life whereby one does not separate what is deemed worship and what is

deemed secular in order to live the Beauty Way."

Free exercise of religion as defense to prosecution for narcotic or psychedelic

drug offense, 35 A.L.R.3d 939 (1971).

Annotations

1. Freedom of press, generally

"The decision to print a retraction rests with the publisher, and the court is

prohibited by the Navajo Bill of Rights and the Indian Civil Rights Act from

ordering a retraction."

Chavez v. Tome, 5 Nav. R. 183, 190 (Nav. Sup. Ct.

1987).

2. Tribal immunity

"We disagree with TBI's position that 7 N.T.C. § 204(a) authorizes suits

against the Navajo Tribe if a violation of civil rights is asserted. Neither

the Navajo Bill of Rights, 1 N.T.C. §§ 1–9, nor 7 N.T.C. § 204(a) explicitly

authorizes suits against the Navajo Nation. [ ... ] ... [T]his is a breach

of contract action brought against the Navajo Nation, therefore, arguments of

civil rights abuse under the Navajo Bill of Rights is inappropriate. [.... ]

Instead of arguing civil rights violations, TBI should have argued whether any

provisions in the contract waived the Tribe's immunity from suit."

TBI

Contractors v. Navajo Tribe, 6 Nav. R. 57, 61 (Nav. Sup. Ct. 1988).

3. Due process

"The Navajo Nation Election Code, as it applies to these schools, does not

affect property interests.

It only affects management issues which are of

interest to the Navajo Nation as a sovereign. Accordingly, we hold that there

was no 'taking' by the imposition of new regulatory requirements and thus no

violation of due process." Rough Rock Community School, Inc. v. Navajo Nation,

7 Nav. R. 199, 201 (Nav. Sup. Ct. 1996).

§ 5. Searches and seizures

The right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, shall not be violated,

and no warrants shall issue, but upon probable cause, supported by oath, or

affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.

History

CD–9–86, December 11, 1986.

CO–63–67, October 9, 1967.

Note.

1 N.N.C. § 5 was formerly codified at 1 N.N.C. § 4.

Annotations

1. Construction and application

"The Navajo Nation Bill of Rights (1 N.N.C. § 5 (1995)), like the Fourth

Amendment to the United States Constitution, and Section 1301 of the Indian

Civil Rights Act, protects the right of the people to be secure in their

persons and property against unreasonable searches and seizures of government,

including unreasonable arrest and detention.

A person may not be subject to

incarcerations except by clear authority of the law. A person is entitled to

prompt judicial determination of probable cause soon after arrest, but in no

event later than 36 hours, if in custody during business days, or 48 hours if

on a weekend or holiday.

The probable cause determination examines whether

arrest and detention are justified. However, a determination of probable cause

only justifies initial arrest and detention incident to the arrest.

When

pretrial release is opposed, the question then becomes whether the defendant,

if release, will seek to interfere with the proper administration of justice,

or is a danger to the community.

Our rules of criminal procedure require a

finding that 'the defendant is dangerous to public safety or that the defendant

will commit a serious crime, or will seek to intimidate any witness, or will

otherwise unlawfully interfere with the administration of justice if released,

or for any other reason allowed by law...' Nav. R. Cr. P. 15(d).

To ensure

fairness and propriety the court must also, 'state the reasons for the record.'

"

Apachito v. Navajo Nation, No. SC–CV–34–02, slip op. at 3 (Nav. Sup. Ct.

August 13, 2003).

"The Navajo Nation Election Code, as it applies to these schools, does not

affect property interests.

It only affects management issues which are of

interest to the Navajo Nation as a sovereign. Accordingly, we hold that there

was no 'taking' by the imposition of new regulatory requirements and thus no

violation of due process." Rough Rock Community School, Inc. v. Navajo Nation,

7 Nav. R. 199, 201 (Nav. Sup. Ct. 1996).

Re:

Double Jeopardy:

"The applicable rule is that where the same act or

transaction constitutes a violation of two distinct statutory provisions, the

test to be applied to determine whether there are two offenses or only one, is

whether each provision requires proof of a fact which the other does not."

Navajo Nation v. MacDonald, Sr., 6 Nav. R. 432, 446 (Nav. Sup. Ct. 1991).

"We disagree with TBI's position that 7 N.T.C. § 204(a) authorizes suits

against the Navajo Tribe if a violation of civil rights is asserted. Neither

the Navajo Bill of Rights, 1 N.T.C. §§ 1–9, nor 7 N.T.C. § 204(a) explicitly

authorizes suits against the Navajo Nation. [ ... ] ... [T]his is a breach

of contract action brought against the Navajo Nation, therefore, arguments of

civil rights abuse under the Navajo Bill of Rights is inappropriate. [.... ]

Instead of arguing civil rights violations, TBI should have argued whether any

provisions in the contract waived the Tribe's immunity from suit."

TBI

Contractors v. Navajo Tribe, 6 Nav. R. 57, 61 (Nav. Sup. Ct. 1988).

§ 6. Right to keep and bear arms

The right of the people to keep and bear arms for peaceful purposes, and

in a manner which does not breach or threaten the peace or unlawfully damage or

destroy or otherwise infringe upon the property rights of others, shall not be

infringed.

History

CD–59–86, December 11, 1986.

CO–63–67, October 9, 1967.

Note.

1 N.N.C. § 6 was formerly codified at 1 N.N.C. § 2.

Annotations

1. Construction and application

"The Navajo Nation Election Code, as it applies to these schools, does not

affect property interests.

It only affects management issues which are of

interest to the Navajo Nation as a sovereign. Accordingly, we hold that there

was no 'taking' by the imposition of new regulatory requirements and thus no

violation of due process." Rough Rock Community School, Inc. v. Navajo Nation,

7 Nav. R. 199, 201 (Nav. Sup. Ct. 1996).

"We disagree with TBI's position that 7 N.T.C. § 204(a) authorizes suits

against the Navajo Tribe if a violation of civil rights is asserted. Neither

the Navajo Bill of Rights, 1 N.T.C. §§ 1–9, nor 7 N.T.C. § 204(a) explicitly

authorizes suits against the Navajo Nation. [ ... ] ... [T]his is a breach

of contract action brought against the Navajo Nation, therefore, arguments of

civil rights abuse under the Navajo Bill of Rights is inappropriate. [.... ]

Instead of arguing civil rights violations, TBI should have argued whether any

provisions in the contract waived the Tribe's immunity from suit."

TBI

Contractors v. Navajo Tribe, 6 Nav. R.57, 61 (Nav. Sup. Ct. 1988).

§ 7. Rights of accused;

trial by jury;

right to counsel

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, and shall be informed of the nature and cause of the

accusation; shall be confronted with the witnesses against him or her; and

shall have compulsory process for obtaining witnesses in their favor.

No

person accused of an offense punishable by imprisonment and no party to a civil

action at law, as provided under 7 N.N.C. § 651 shall be denied the right, upon

request, to a trial by jury of not less than six persons; nor shall any person

be denied the right to have the assistance of counsel, at their own expense,

and to have defense counsel appointed in accordance with the rules of the

courts of the Navajo Nation upon satisfactory proof to the court of their

inability to provide for their own counsel for the defense of any punishable

offense under the laws of the Navajo Nation.

History

CD–59–86, December 11, 1986.

CO–63–67, October 9, 1967.

Note.

1 N.N.C. § 7 was formerly codified at 1 N.N.C. § 6.

United States Code

Right to speedy trial, 42 U.S.C. § 1992.

Annotations

1. Sufficiency of complaint

"Fair procedure mandates that a defendant shall be properly charged, arraigned,

found guilty and sentenced for an offense that is expressly provided for under

a valid Code section." Begay v. Navajo Nation, 6 Nav. R. 132, 133 (Nav. Sup.

Ct. 1989).

This Section requires that prosecutors prepare criminal complaints which allege

the basic parts of the statute creating the crime and sufficient facts fitting

within the statute to enable the defendant and his defense attorney to prepare

their case. Navajo Nation v. Benson Lee, 4 Nav. R. 185, (W.R. Dist. Ct. 1983).

2. Due process

"The Navajo Nation Election Code, as it applies to these schools, does not

affect property interests.

It only affects management issues which are of

interest to the Navajo Nation as a sovereign. Accordingly, we hold that there

was no 'taking' by the imposition of new regulatory requirements and thus no

violation of due process." Rough Rock Community School, Inc. v. Navajo Nation,

7 Nav. R. 199, 201 (Nav. Sup. Ct. 1996).

"A person alleged to be in indirect civil or criminal contempt of court must be

notified of the charges, have a right to be represented by counsel, have a

reasonable time to prepare a defense, and have an opportunity to be heard.

[....

] The rules of criminal procedure are also applicable to indirect

criminal contempt proceedings." In the Matter of Contempt of Mann, 5 Nav. R.

125, 128 (Nav. Sup. Ct. 1987).

3. Appointed counsel

"We have cited two statutes enacted by the Navajo Tribal Council that govern

appointment of attorneys in criminal cases." Boos v. Yazzie, 6 Nav. R. 211,

216 (Nav. Sup. Ct. 1990).

"The Navajo Nation Bill of Rights also guarantees appointment of counsel for

indigent criminal defendants charged in Navajo courts." Boos v. Yazzie, 6 Nav.

R. 211, 214 (Nav. Sup. Ct. 1990).

4. Delay

"In determining whether the right to a speedy trial has been violated, the

Court applies four factors: 1) the length of the delay, 2) the reason for the

delay, 3) the defendant's assertion of the right, and 4) the prejudice to the

defendant caused by the delay."

Navajo Nation v. Badonie, No. SC–CR–06–05,

slip op. at 4 (Nav. Sup. Ct. March 7, 2006).

"Considering the four factors in this case, Badonie's speedy trial right was

violated.

The District Court took about a year to comply with the Supreme

Court's remand, which specified that the findings and conclusions were

necessary. Nothing in the record explains why the District Court took so long

and no effort was made to provide any justification. Further, as noted above,

Badonie several times asserted his right to a speedy trial, and even the Navajo

Nation sought to move the case forward by seeking intervention by this Court.

The first three factors therefore support Badonie's argument." Navajo Nation

v. Badonie, No. SC–CR–06–05, slip op. at 5 (Nav. Sup. Ct. March 7, 2006).

"The fourth factor, prejudice to the defendant, is also clearly shown.

The

fourth factor reflects that the speedy trial right exists to protect the

criminal defendant's ability to defend himself or herself, primarily by

preventing the loss of witnesses, their memory of events, or other evidence

through the passage of time." Navajo Nation v. Badonie, No. SC–CR–06–05, slip

op. at 5 (Nav. Sup. Ct. March 7, 2006).

"Under the four factors, the Court holds that the District Court violated

Seaton's right to a speedy trial. Under the first factor, as of the hearing on

Seaton's petition before this Court, Seaton had been in detention for

approximately 172 days without a trial.

Under the third factor, Seaton

himself, with no assistance from his attorney, filed a writ of habeas corpus

with this Court, claiming a violation of his speedy trial right.

Under the

fourth factor, Seaton experienced significant prejudice, as the District

Court's orders of temporary commitment coupled with the seven continuances

meant that he remained in jail with no resolution of his case for nearly six

months." Seaton v. Greyeyes, No. SC–CV–04–06, slip op. at 5—6 (Nav. Sup. Ct.

March 28, 2006).

"Delay was not excessive considering the circumstances of the case."

Nation v. MacDonald, Jr., 7 Nav.R. 1, 11 (Nav. Sup. Ct. 1992).

Navajo

5. Tribal immunity

"We disagree with TBI's position that 7 N.T.C. § 204(a) authorizes suits

against the Navajo Tribe if a violation of civil rights is asserted. Neither

the Navajo Bill of Rights, 1 N.T.C. §§ 1–9, nor 7 N.T.C. § 204(a) explicitly

authorizes suits against the Navajo Nation. [ ... ] ... [T]his is a breach

of contract action brought against the Navajo Nation, therefore, arguments of

civil rights abuse under the Navajo Bill of Rights is inappropriate. [.... ]

Instead of arguing civil rights violations, TBI should have argued whether any

provisions in the contract waived the Tribe's immunity from suit."

TBI

Contractors v. Navajo Tribe, 6 Nav. R.57, 61 (Nav. Sup. Ct. 1988).

6. Jury trial

"Fairness requires that parties not be denied their right to a jury trial

merely because they cannot immediately afford the costs of holding one.

However, the Court holds that the requirement to prepay jury costs is not, in

and of itself, a violation of a party's right to a jury trial." Johnson et al.

v. Tuba City District Court, and concerning Yellowman, No. SC–CV–12–07, slip

op. at 9 (Nav. Sup. Ct. November 7, 2007).

§ 8. Double jeopardy, self-incrimination;

deprivation of property

No person shall be subject for the same offense to be twice put in

jeopardy of liberty, or property; nor be compelled in any criminal case to be

a witness against themselves;

nor shall private property be taken nor its

lawful private use be impaired for public or governmental purposes or use,

without just compensation.

History

CD–59–86, December 11, 1986.

CO–63–67, October 9, 1967.

Note.

1 N.N.C. § 8 was formerly codified at 1 N.N.C. § 5.

United States Code

Double jeopardy, 42 U.S.C. § 2000h-l.

Annotations

1. Eminent domain

The Navajo Tribe has the power to take or authorize the taking of property

without the consent of the owners of the property or of any interest therein,

provided that the owners are given due process of law and just compensation.

Dennison v. Tucson Gas and Electric Co., 1 Nav. R. 95, (Nav. Ct. App. 1974).

Under the customary division of governmental power into three separate

branches, a division which exists in the Navajo Nation, the right to exercise

the power of eminent domain may be authorized only by the legislature and there

can be no taking of private property for public use against the will of the

owner without direct authority from the legislature and then the taking must be

only in the manner prescribed by the legislature. Dennison v. Tucson Gas and

Electric Co., 1 Nav. R. 95, (Nav. Ct. App. 1974).

Where Chairman of the Navajo Tribe, on behalf of the tribe, granted gas and

electric company a right-of-way across land of plaintiffs, who had a grazing

permit and had a home and other improvements on the land, to build and maintain

a power line, and just compensation was not given plaintiffs, the taking of the

land was illegal and not in accord with 16 N.T.C. §§ 551 et seq., and defense

of sovereign immunity from suit was not available to the tribe in plaintiffs

suit for damages, an injunction against further trespass and cancellation of

their allegedly fraudulently obtained consent to the taking. Dennison v. Tucson

Gas and Electric Co., 1 Nav. R. 95 (Nav. Ct. App. 1974).

2. Property interests

" ... [E]lected officials have no property interest in their elective office.

[....

] Thus, fundamental rights are not implicated by the removal of an

elected official from office." Vandever, v. The Navajo Nation Ethics and Rules

Office, 7 Nav. R. 356, 358 (Nav. Sup. Ct. 1998).

"The Navajo Nation Election Code, as it applies to these schools, does not

affect property interests.

It only affects management issues which are of

interest to the Navajo Nation as a sovereign. Accordingly, we hold that there

was no "taking" by the imposition of new regulatory requirements and thus no

violation of due process." Rough Rock Community School, Inc. v. Navajo Nation,

7 Nav. R. 199, 201 (Nav. Sup. Ct. 1996).

"The Begays' interest in Mutual Help Housing is a property interest." Begay v.

Begay, 6 Nav. R. 160, 161 (Nav. Sup. Ct. 1989).

"An elected official does not have a property right in public office.

The

office belongs to the voting public. Katenay's due process rights do not stem

from his position as a holder of elected office. His due process rights are

derived from 2 N.T.C. § 4005, which gives him the right to explain to his

constituents the grievances against him and to be voted out of office, or

retained, by persons who were present during his explanation." In re: Removal

of Katenay, 6 Nav. R. 81, 85 (Nav. Sup. Ct. 1989).

3. Civil forfeitures

"We disagree with TBI's position that 7 N.T.C. § 204(a) authorizes suits

against the Navajo Tribe if a violation of civil rights is asserted. Neither

the Navajo Bill of Rights, 1 N.T.C. §§ 1–9, nor 7 N.T.C. § 204(a) explicitly

authorizes suits against the Navajo Nation. [ ... ] ... [T]his is a breach

of contract action brought against the Navajo Nation, therefore, arguments of

civil rights abuse under the Navajo Bill of Rights is inappropriate. [.... ]

Instead of arguing civil rights violations, TBI should have argued whether any

provisions in the contract waived the Tribe's immunity from suit."

TBI

Contractors v. Navajo Tribe, 6 Nav. R.57, 61 (Nav. Sup. Ct. 1988).

"Therefore, we hold that a civil forfeiture proceeding must provide due process

as set forth in the Navajo Nation Bill of Rights, 1 N.T.C. § 3; the Indian

Civil Rights Act, 25 U.S.C. § 1302(8), and Navajo common law." Begay v. Navajo

Nation, 6 Nav. R. 20, 24 (Nav. Sup. Ct. 1988).

4. Double jeopardy, generally

"The Court will apply heightened scrutiny to provisions that allegedly create

separate offenses based on a single action, and in the absence of clear intent

that the statutory offenses indeed punish separate conduct, multiple

convictions for the same action will be barred by double jeopardy. The mere

fact that the elements of the two or more statutory offenses are fulfilled by a

defendant's action does not, by itself, show clear intent." Navajo Nation v.

Kelly, No. SC–CR–04–05, slip op. at 8 (Nav. Sup. Ct. July 24, 2006).

"The Diné concept of 'double jeopardy' also means that even if the Council

creates two separate offenses that clearly punish the same conduct, it cannot

nonetheless mandate multiple punishments, even if its intent is clear." Navajo

Nation v. Kelly, No. SC–CR–04–05, slip op. at 8 (Nav. Sup. Ct. July 24, 2006).

"In future cases, a prosecutor must file the complaint with double jeopardy in

mind, and understand that an offender cannot be convicted of both reckless

driving or DUI and homicide by vehicle when such conduct causes a death. If

the Prosecutor charges the defendant with reckless driving or DUI and homicide

by vehicle, and establishes the elements of reckless driving or DUI, and that a

death resulted from those actions, the district court may only convict the

defendant for the homicide offense." Navajo Nation v. Kelly, No. SC–CR–04–05,

slip op. at 10 (Nav. Sup. Ct. July 24, 2006).

5. Takings

"Requiring uncompensated representation of indigent criminal defendants by NNBA

members is not a taking of private property without just compensation, but a

reasonable condition of Bar membership." Boos v. Yazzie, 6 Nav. R. 211, 220–

221 (Nav. Sup. Ct. 1990).

§ 9. Cruel and unusual punishment;

excessive bail and fines

Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishment inflicted.

History

CD–59–86, December 11, 1986.

CO–63–67, October 9, 1967.

Note.

1 N.N.C. § 9 was formerly codified at 1 N.N.C. § 7.

Annotations

1. Sentencing

"A jail sentence rendered outside the authority of a district court is cruel

and unusual punishment under the Navajo Bill of Rights." Thompson v. Greyeyes,

No. SC–CV–29–04, slip op. at 5 (Nav. Sup. Ct. May 24, 2004).

"This Court has previously established that a criminal sentence not according

to law is cruel and unusual punishment prohibited by the Navajo Nation Bill of

Rights."

Martin v. Antone, No. SC–CV–48–02, slip op. at 2 (Nav. Sup. Ct.

August 13, 2003); citing; Navajo Nation v. Jones, 1 Nav. R. 14, 18 (1971),

Johnson v. Navajo Nation, 5 Nav. R. 152, 153 (Nav. Sup. Ct. 1987).

"As a general matter, a criminal sentence [including a consecutive sentence] is

not cruel and unusual punishment as long as it falls within the boundaries set

by the legislature." Navajo Nation v. MacDonald, Sr., 6 Nav. R. 432, 447 (Nav.

Sup. Ct. 1991).

"This Court recognizes that a '[a]' substantial liberty interest is at stake in

sentencing." Begay v. Navajo Nation, 6 Nav. R. 132, 133 (Nav. Sup. Ct. 1989).

2. Treatment of juveniles

"The Court therefore interprets [9 N.N.C.] Section 1152(A)(2) to only allow

incarceration when allowed for adults. Incarceration of a minor when

unauthorized for an adult is cruel and unusual punishment in violation of the

Navajo Bill of Rights." In the Matter of N.B. v. Greyeyes, No. SC–CV–03–08,

slip op. at 4–5, (Nav. Sup. Ct. April 16, 2008).

" ... [W]e also hold that at the minimum a detained juvenile must be provided

with a padded area to lie on, a blanket, and food to eat to comply with the

Navajo Bill of Rights Section against cruel and unusual punishment."

In the

Matter of A.W., 6 Nav. R. 38, 41 (Nav. Sup. Ct. 1988).

3. Due process

"The Navajo Nation Election Code, as it applies to these schools, does not

affect property interests.

It only affects management issues which are of

interest to the Navajo Nation as a sovereign. Accordingly, we hold that there

was no 'taking' by the imposition of new regulatory requirements and thus no

violation of due process." Rough Rock Community School, Inc. v. Navajo Nation,

7 Nav. R. 199, 201 (Nav. Sup. Ct. 1996).

"We disagree with TBI's position that 7 N.T.C. § 204(a) authorizes suits

against the Navajo Tribe if a violation of civil rights is asserted. Neither

the Navajo Bill of Rights, 1 N.T.C. §§ 1–9, nor 7 N.T.C. § 204(a) explicitly

authorizes suits against the Navajo Nation. [ ... ] ... [T]his is a breach

of contract action brought against the Navajo Nation, therefore, arguments of

civil rights abuse under the Navajo Bill of Rights is inappropriate. [.... ]

Instead of arguing civil rights violations, TBI should have argued whether any

provisions in the contract waived the Tribe's immunity from suit."

TBI

Contractors v. Navajo Tribe, 6 Nav. R. 57, 61 (Nav. Sup. Ct. 1988).

4. Child in Need of Supervision

"The use of contempt to incarcerate a CHINS child improperly treats that child

as delinquent, violates the Council's clear prohibition on incarceration of

such children, and amounts to cruel and unusual punishment under the Navajo

Bill of Rights." In the Matter of M.G. v. Greyeyes, No. SC–CV–09–07, slip op.

at 4 (Nav. Sup. Ct. March 14, 2007).

5. Habeas corpus

"This Court holds that the jail sentence imposed does not have a definite term.

The Petitioner was jailed for 55 days although he kept informing the District

Court that he does not have the money, nor can he raise the money if he is

incarcerated. Under these circumstances, the sentence is contrary to 17 N.N.C.

§ 223, constituting cruel and unusual punishment." Cody v. Greyeyes, No. SC–CV–

09–09, slip op. at 4 (Nav. Sup. Ct. March 11, 2009).

"We therefore hold that the Navajo Nation Bill of Rights prohibited

Petitioner's incarceration for his inability to pay the court imposed fines and

fees in a criminal proceeding; under these circumstances, the sentence

constitutes cruel and unusual punishment and an unreasonable deprivation of

liberty." Cody v. Greyeyes, No. SC–CV–09–09, slip op. at 5 (Nav. Sup. Ct. March

11, 2009).

6. Denials of release

"We therefore hold that being incarcerated for 21 days without court action on

motions for release constitutes cruel and unusual punishment under the Navajo

Bill of Rights. 1 N.N.C. § 9." Wood v. Window Rock District Court, No. SC–CV–

20–09, slip op. at 10 (Nav. Sup. Ct. July 1, 2009).

Chapter 2. The Foundation of the Diné, Diné Law and Diné Government

History

CN–69–02, November 1, 2002.

Preamble.

CN–69–02 contains the following preamble:

"Whereas: 2. The Diné have always been guided and protected by the immutable

laws provided by the Diyin, the Diyin Diné'é, Nahasdzáán and Yádi[hi[; these

laws have not only provided sanctuary for the Diné Life Way but has guided,

sustained and protected the Diné as they journeyed upon and off the sacred

lands upon which they were placed since time immemorial; and

"3. It is the duty of the Nation's leadership to preserve, protect and enhance

the Diné Life Way and sovereignty of the people and their government;

the

Nation's leaders have always lived by these fundamental laws, but the Navajo

Nation Council has not acknowledged and recognized such fundamental laws in the

Navajo Nation Code; instead the declaration and practice of these fundamental

laws have, up to this point in time, been left to those leaders in the Judicial

Branch; and

"4. The Navajo Nation Council is greatly concerned that knowledge of these

fundamental laws is fading, especially among the young people; the Council is

also concerned that this lack of knowledge may be a primary reason why the Diné

are experiencing the many negative forms of behavior and natural events that

would not have occurred had we all observed and lived by these laws; and

"5. The Navajo Nation Council finds that the Diné Life Way must be protected

and assured by incorporating these fundamental laws into the Navajo Nation Code

in a manner that will openly acknowledge and recognize their importance and

would generate interest to learn among all Diné; and

"6. The Navajo Nation Council finds that the acknowledgment, recognition and

teaching of these laws do not contravene 1 N.N.C. § 4; the incorporation of

these fundamental laws into the Navajo Nation Code is not governmental

establishment of religion nor is it prohibiting the free exercise of religion;

the Navajo Nation Council and the Diné have always recognized and respected the

principle of these fundamental laws and the Diné have the right and freedom to

worship as they choose; and the Navajo Nation Council and the Diné recognize

that the Diné Life Way is a holistic approach to living one's life whereby one

does not separate what is deemed worship and what is deemed secular in order to

live the Beauty Way; and

"7. The Navajo Nation Council further finds that it is entirely appropriate for

the government itself to openly observe these fundamental laws in its public

functions such as the installation or inauguration of its leaders and using and

placing the appropriate symbols of the Diné Life Way in its public buildings

and during legislative and judicial proceeding; and

"8. The Navajo Nation Council further finds that all elements of the government

must learn, practice and educate the Diné on the values and principles of these

laws; when the judges adjudicate a dispute using these fundamental laws, they

should thoroughly explain so that we can all learn;

when leaders perform a

function using these laws and the symbols of the Diné Life Way, they should

teach the public why the function is performed in a certain way or why certain

words are used; and

"9. The Navajo Nation Council further finds that all the details and analysis

of these laws cannot be provided in this acknowledgment and recognition, and

such as effort should not be attempted; the Navajo Nation Council finds that

more work is required to elucidate the appropriate fundamental principles and

values which are to be used to educate and interpret the statutory laws already

in place and those that may be enacted; the Council views this effort today as

planting the seed for the education of all Diné so that we can continue to Walk

in Beauty."

§ 201. Diné Bi Beehaz'áanii Bitsé Siléí—Declaration of the Foundation of Diné

Law

We, the Diné, the people of the Great Covenant, are the image of our

ancestors and we are created in connection with all creation.

Diné Bi Beehaz'áanii Bitsí Siléí

Diyin Dine'é,

Sin dóó sodizin,

Bee

Nahasdzáán dóó yádi[hi[ nitsáhákees yi[ hadeidiilaa,

Tó dóó dzi[ diyinii nahat'á yi[ hadeidiilaa,

Ni[ch'i dóó nanse' a[taas'éí iiná yi[ hadediilaa,

K‐ ', adinídíín dóó nt['iz náádahaniihjį' sihasin yi[ hadediilaa.

Díí ts'ídá aláají' nihi beehaz'áanii bitse siléí nihá' ályaa.

Nitsáhákees éí nahat'á bitsé silá.

Iiná éí sihasin bitsé silá.

Hanihi'diilyaadi díí nihiihdaahya' dóó bee hadíníit'é.

Binahji' nihéého'dílzingíí éíí:

Nihízhi',

Ádóone'é niidlíinii,

Nihinéí',

Nihee ó'ool íí[,

Nihi chaha'oh,

Nihi kék'ehashchíín.

Díí bik'ehgo Diyin Nohookáá Diné nihi'doo'niid.

Kodóó dah'adíníisá dóó dah'adiidéél.

Áko dííshjíįgi éí nitsáhákees, nahat'á, iiná, saad, oodlą',

Dóó beehaz'áanii a['ąą ádaat'éego nihitah nihwiileeh,

Ndi

ánéehda.

Éí

nihi

beehaz'áanii

biniinaa t'áá

ge'át'éigo,

bitsé

nanihi'deelyáháą

siléí

doo

nhá

ní[ch'i

ndaahya'áá

diyin

t'ahdii

doo

[ahgo

hinááh

nihiihdaahya'áą

sacred

stones

T'áá Diné niidlíígo náásgóó ahool'á.

The Holy People ordained,

Through songs and prayers,

That

Earth and universe embody thinking,

Water and the sacred mountains embody planning,

Air and variegated vegetation embody life,

Fire,

light,

and

offering

sites

of

variegated

embody

wisdom.

These are the fundamental tenets established.

Thinking is the foundation of planning.

Life is the foundation of wisdom.

Upon our creation, these were instituted within us and we embody them.

Accordingly, we are identified by:

Our Diné name,

Our clan,

Our language,

Our life way,

Our shadow,

Our footprints.

Therefore, we were called the Holy Earth–Surface–People.

From here growth began and the journey proceeds.

Different thinking, planning, life ways, languages, beliefs, and laws

appear among us,

But the fundamental laws placed by the Holy People remain unchanged.

Hence, as we were created and with living soul, we remain Diné forever.1

History

CN–69–02, November 1, 2002.

Annotations

1. Application

"As the test we announce today requires clear intent in the plain language or

structure of a statute to override an exemption, we do not fill any omissions

or interpret ambiguous language under Diyin Nohookáá Dine' é Bi Beehaaz'áanii

(Navajo Common Law). Our general rules of statutory construction changed with

Council passage of Resolution Nos. CN–69–02 (November 13, 2002) (Amending Title

1 of the Navajo Nation Code to Recognize the Fundamental Laws of the Diné) and

CO–72–03 (October 24, 2003) (Amending Title VII of the Code), which mandate

that we 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."

Tso v. Navajo Housing

Authority, No. SC–CV–10–02, slip op. at 5–6 (Nav. Sup. Ct. August 26, 2004).

"Resolutions CN–69–02 (recognizing the Fundamental Laws of the Diné) and CO–72–

03 (adopting amendments to 7 N.N.C. § 204 choice of law provisions) expand the

Belone rule beyond the initial pleading requirement for asserting the

application of Diné bi beenahaz'áanii in our Courts.

Resolution CN–69–02

instructs our judges and justices to take notice of Diné bi beenahaz'áanii in

their decisions, when applicable.

Thus, the failure to raise Diné bi

beenahaz'áanii in the initial pleading will not lead to exclusion of the claim.

Importantly, we do not suggest that common law be raised with reckless abandon

wherever and whenever it strikes one's fancy, nor that it be raised in dilatory

fashion.

We suggest that whenever common law is raised, and whether it is

raised sua sponte or by a party, the parties should be given ample time and

opportunity to address the issue." Judy v. White, No. SC–CV–35–02, slip op. at

17 (Nav. Sup. Ct. August 2, 2004).

2. Probate

"While the Navajo Probate Code states that state law should apply unless custom

is 'proved,' 8 N.N.C. § 2(B) (2005), the subsequent passage of the statute

affirming the Fundamental Laws of the Diné, 1 N.N.C. § 201, et seq. (2005)

(passed by Navajo Nation Council Resolution No. CO–72–03, (October 24, 2003)),

means that a trial court may take judicial notice of Diné bi beenahaz'áanii."

In the Matter of the Estate of Amy Kindle, No. SC–CV–40–05, slip op. at 7 (Nav.

Sup. Ct. May 18, 2006).

"This Court's previous decision in this case, that state law applies if custom

is not proven, see Kindle, No. SC–CV–38–99, slip op. at 4, predates these

statutory changes. In light of these new statutory developments, the choice of

law provision in the probate Code cannot be reconciled with the clear mandate

to apply Diné bi beenahaz'áanii first, and state law only in the absence of

Navajo law, and must therefore yield."

In the Matter of the Estate of Amy

Kindle, No. SC–CV–40–05, slip op. at 7 (Nav. Sup. Ct. May 18, 2006).

§ 202. Diné Bi Beenahaz'áanii

The Diné bi beenahaz'áanii embodies Diyin bits33d66' beehaz'áanii

(Traditional Law), Diyin Dine'é bits33d66' beehaz'áanii (Customary Law),

Nahasdzáán dóó Yádi[hi[ bits33d66' beehaz'áanii (Natural Law), and Diyin

Nohookáá Diné bi beehaz'áanii (Common Law).

These 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.

These laws provide the foundation of Diné bi nahat'á (providing

leadership through developing and administering policies and plans utilizing

these laws as guiding principles) and Diné sovereignty. In turn, Diné bi

nahat'á is the foundation of the Diné bi naat'á (government). Hence, the

respect for, honor, belief and trust in the Diné bi beenahaz'áanii preserves,

protects and enhances the following inherent rights, beliefs, practices and

freedoms:

A. The individual rights and freedoms of each Diné (from the beautiful

child who will be born tonight to the dear elder who will pass on tonight from

old age) as they are declared in these laws; and

B. The collective rights and freedoms of the Diyin Nihookáá Diné as a

distinct people as they are declared in these laws; and

C. The fundamental values and principles of Diné Life Way as declared in

these laws; and

D. Self-governance;

and

E. A government structure consisting of Hózh%3Eó%3Eójí Nahat'á (Executive

Branch), Naat'ájí Nahat'á (Legislative Branch), Hashkééjí Nahat'á (Judicial

Branch), and the Naayee'jí Nahat'á (National Security Branch); and

F. That the practice of Diné bi nahat'á through the values and life way

embodied in the Diné bi beenahaz'áanii provides the foundation of all laws

proclaimed by the Navajo Nation government and the faithful adherence to Diné

bi nahat'á will ensure the survival of the Navajo Nation; and

G. That Diné bi beenahaz'áanii provides for the future development and

growth of a thriving Navajo Nation regardless of the many different thinking,

planning, life ways, languages, beliefs, and laws that may appear within the

Nation; and

H. The right and freedom of the Diné to be educated as to Diné bi

beenahaz'áanii; and

I. That Diné bi beenahaz'áanii provides for the establishment of

governmental relationships and agreements with other nations;

that the Diné

shall respect and honor such relationships and agreements and that the Diné can

expect reciprocal respect and honor from such other nations.

History

CN–69–02, November 1, 2002.

Annotations

1. Failure to plead

"As the test we announce today requires clear intent in the plain language or

structure of a statute to override an exemption, we do not fill any omissions

or interpret ambiguous language under Diyin Nohookáá Dine' é Bi Beehaaz'áanii

(Navajo Common Law). Our general rules of statutory construction changed with

Council passage of Resolution Nos. CN–69–02 (November 13, 2002) (Amending Title

1 of the Navajo Nation Code to Recognize the Fundamental Laws of the Diné) and

CO–72–03 (October 24, 2003) (Amending Title VII of the Code), which mandate

that we 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."

Tso v. Navajo Housing

Authority, No. SC–CV–10–02, slip op. at 5–6 (Nav. Sup. Ct. August 26, 2004).

"Resolutions CN–69–02 (recognizing the Fundamental Laws of the Diné) and CO–72–

03 (adopting amendments to 7 N.N.C. § 204 choice of law provisions) expand the

Belone rule beyond the initial pleading requirement for asserting the

application of Diné bi beenahaz'áanii in our Courts.

Resolution CN–69–02

instructs our judges and justices to take notice of Diné bi beenahaz'áanii in

their decisions, when applicable.

Thus, the failure to raise Diné bi

beenahaz'áanii in the initial pleading will not lead to exclusion of the claim.

Importantly, we do not suggest that common law be raised with reckless abandon

wherever and whenever it strikes one's fancy, nor that it be raised in dilatory

fashion.

We suggest that whenever common law is raised, and whether it is

raised sua sponte or by a party, the parties should be given ample time and

opportunity to address the issue."

17 (Nav. Sup. Ct. August 2, 2004).

Judy v. White, No. SC–CV–35–02, slip op. at

2. Harassment

"Lacking any guidance in the NPEA, the Court adopts Anderson's suggested

definition of 'harassment' as consistent with the policies of the statute and

Diné bi beenahaz'áanii." Kesoli v. Anderson Security Agency, No. SC–CV–01–05,

slip op. at 5 (Nav. Sup. Ct. October 12, 2005).

3. Rights

"Just as there are fundamental rights and freedoms of individuals as

acknowledged by the Council in the Navajo Bill of Rights, there are fundamental

rights of the collective People, the tribal nation, as acknowledged and

recognized in the Fundamental Law statute." Thinn v. Navajo Generating Station,

Salt River Project; and Gonnie v. Headwaters Resources, No. SC–CV–25–06 and No.

SC–CV–26–06, slip op. at 8 (Nav. Sup. Ct. October 19, 2007).

§ 203. Diyin Bits'áádéé' Beehaz'áanii—Diné Traditional Law

The Diné Traditional Law declares and teaches that:

A. It is the right and freedom of the Diné to choose leaders of their

choice;

leaders who will communicate with the people for guidance;

leaders

who will use their experience and wisdom to always act in the best interest of

the people; and leaders who will also ensure the rights and freedoms of the

generations yet to come; and

B. All leaders chosen by the Diné are to carry out their duties and

responsibilities in a moral and legal manner in representing the people and the

government; the people's trust and confidence in the leaders and the continued

status as a leader are dependent upon adherence to the values and principles of

Dine bi beenahazáanii; and

C. The leader(s) of the Executive Branch (Al33j9' Hózh==jí Naat'ááh)

shall represent the Navajo Nation to other peoples and nations and implement

the policies and laws enacted by the legislative branch; and

D. The leader(s) of the Legislative Branch (Al33j9' Naat'ájí Naat'ááh and

Al33j9' Naat'ájí Ndaanit'áii or Naat'aanii) shall enact policies and laws to

address the immediate and future needs; and

E. The leader(s) of the Judicial Branch (Al33j9' Hashkééjí Naat'ááh)

shall uphold the values and principles of Diné bi beenahaz'áanii in the

practice of peace making, obedience, discipline, punishment, interpreting laws

and rendering decisions and judgments; and

F. The leader(s) of the National Security Branch (Al33j9' Naayéé'jí

Naat'ááh) are entrusted with the safety of the people and the government. To

this end, the leader(s) shall maintain and enforce security systems and

operations for the Navajo Nation at all times and shall provide services and

guidance in the event of severe national crisis or military-type disasters;

and

G. Our elders and our medicine people, the teachers of the traditional

laws, values and principles must always be respected and honored if the people

and the government are to persevere and thrive; the teachings of the elders

and medicine people, their participation in the government and their

contributions of the traditional values and principles of the Diné life way

will ensure the growth of the Navajo Nation; and from time to time, the elders

and medicine people must be requested to provide the cleansing, protection

prayers, and blessing ceremonies necessary for securing healthy leadership and

the operation of the government in harmony with traditional law; and

H. The various spiritual healings through worship, song and prayer

(Nahaghá) must be preserved, taught, maintained and performed in their original

forms; and

I. The Diné and the government must always respect the spiritual beliefs

and practices of any person and allow for the input and contribution of any

religion to the maintenance of a moral society and government; and

J. The Diné and the government can incorporate those practices,

principles and values of other societies that are not contrary to the values

and principles of Diné Bi Beenahaz'áanii and that they deem is in their best

interest and is necessary to provide for the physical and mental well-being for

every individual.

History

CN–69–02, November 1, 2002.

Annotations

1. Application

"As the test we announce today requires clear intent in the plain language or

structure of a statute to override an exemption, we do not fill any omissions

or interpret ambiguous language under Diyin Nohookáá Dine' é Bi Beehaaz'áanii

(Navajo Common Law). Our general rules of statutory construction changed with

Council passage of Resolution Nos. CN–69–02 (November 13, 2002) (Amending Title

1 of the Navajo Nation Code to Recognize the Fundamental Laws of the Diné) and

CO–72–03 (October 24, 2003) (Amending Title VII of the Code), which mandate

that we 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."

Tso v. Navajo Housing

Authority, No. SC–CV–10–02, slip op. at 5–6 (Nav. Sup. Ct. August 26, 2004).

"Resolutions CN–69–02 (recognizing the Fundamental Laws of the Diné) and CO–72–

03 (adopting amendments to 7 N.N.C. § 204 choice of law provisions) expand the

Belone rule beyond the initial pleading requirement for asserting the

application of Diné bi beenahaz'áanii in our Courts.

Resolution CN–69–02

instructs our judges and justices to take notice of Diné bi beenahaz'áanii in

their decisions, when applicable.

Thus, the failure to raise Diné bi

beenahaz'áanii in the initial pleading will not lead to exclusion of the claim.

Importantly, we do not suggest that common law be raised with reckless abandon

wherever and whenever it strikes one's fancy, nor that it be raised in dilatory

fashion.

We suggest that whenever common law is raised, and whether it is

raised sua sponte or by a party, the parties should be given ample time and

opportunity to address the issue." Judy v. White, No. SC–CV–35–02, slip op. at

17 (Nav. Sup. Ct. August 2, 2004).

2. Elections

"In Navajo thinking, the selection of a person by voters is one of two

requirements for a candidate to become a naat'áanii. That person must also

accept the position, and, to accept, must take an oath to serve the laws of the

sovereign government within whose system he or she will serve the people–

'naat'áanii ádee hadidziih.' Only when a person accepts through an oath will

all of the Navajo people say that a person has been properly installed as a

naat'áanii–'naat'áanii idl9 bee bítsoosz99.' In other words, 'Diné binant'a'í

bee bi'doosz99d or Diné binaat'áanii bee bi'doosz99d' [ ... ] The oath is

absolute, and allows no conflict in loyalty. This requirement of absolute

loyalty is reiterated in the Election Code itself, as one of the qualifications

for a council delegate is that he or she must 'maintain unswerving loyalty to

the Navajo Nation.' 11 N.N.C. § 8(B)(5) (2005). Under these principles, a

person may not swear allegiance to obey and serve simultaneously the laws of

the Nation and the State of New Mexico. The prohibition is then consistent with

our Fundamental Law, and it is not improper for the Election Code to require

Tsosie to serve only one government." In the Matter of the Grievance of:

Wagner, and concerning, Tsosie, SC–CV–01–07, slip op. at 7–8 (Nav. Sup. Ct. May

14, 2007).

"The Council may establish requirements for elected offices, but such

requirements must conform to Diné bi beenahaz'áanii. There is a basic right,

highlighted in the Fundamental Law statute, the the Diné have the right to

choose leaders of their choice." In the Matter of the Appeal of Vern Lee, No.

SC–CV–32–06, slip op. at 5 (Nav. Sup. Ct. August 11, 2006).

"Further, under Diné bi beenahaz'áanii, Navajo candidates have a liberty

interest to participate in the political process by running for office."

In

the Matter of the Appeal of Vern Lee, No. SC–CV–32–06, slip op. at 5 (Nav. Sup.

Ct. August 11, 2006).

"The residency requirement must be considered in light of these fundamental

rights. If it is in irreconcilable conflict with those rights, that is, if it

defeats the ability of the people to elect leaders of their choosing and

candidates to run for office, it must yield." In the Matter of the Appeal of

Vern Lee, No. SC–CV–32–06, slip op. at 5 (Nav. Sup. Ct. August 11, 2006).

§ 204. Diyin Dine'é Bits33d66' Beehaz'áanii—Diné Customary Law

The Diné Customary Law declares and teaches that:

A. It is the right and freedom of the people that there always be

holistic education of the values and principles underlying the purpose of

living in balance with all creation, walking in beauty and making a living;

and

B. It is the right and freedom of the people that the sacred system of

k'é, based upon the four clans of Kiiyaa'áanii, Todích'iínii, Honagháahnii and

Hasht['ishnii and all the descendant clans be taught and preserved; and

C. It is the right and freedom of the people that the sacred Diné

language (nihiinéí') be taught and preserved; and

D. It is the right and freedom of the people that the sacred bonding in

marriage and the unity of each family be protected; and

E. It is the right and freedom of the people that every child and every

elder be respected, honored and protected with a healthy physical and mental

environment, free from all abuse; and

F. It is the right and freedom of the people that our children are

provided with education to absorb wisdom, self-knowledge, and knowledge to

empower them to make a living and participate in the growth of the Navajo

Nation.

History

CN–69–02, November 1, 2002.

Annotations

1. Application

"Just as there are fundamental rights and freedoms of individuals as

acknowledged by the Council in the Navajo Bill of Rights, there are fundamental

rights of the collective People, the tribal nation, as acknowledged and

recognized in the Fundamental Law statute." Thinn v. Navajo Generating Station,

Salt River Project; and Gonnie v. Headwaters Resources, No. SC–CV–25–06 and No.

SC–CV–26–06, slip op. at 8 (Nav. Sup. Ct. October 19, 2007).

"As the test we announce today requires clear intent in the plain language or

structure of a statute to override an exemption, we do not fill any omissions

or interpret ambiguous language under Diyin Nohookáá Dine' é Bi Beehaaz'áanii

(Navajo Common Law). Our general rules of statutory construction changed with

Council passage of Resolution Nos. CN–69–02 (November 13, 2002) (Amending Title

1 of the Navajo Nation Code to Recognize the Fundamental Laws of the Diné) and

CO–72–03 (October 24, 2003) (Amending Title VII of the Code), which mandate

that we 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."

Tso v. Navajo Housing

Authority, No. SC–CV–10–02, slip op. at 5–6 (Nav. Sup. Ct. August 26, 2004).

"Resolutions CN–69–02 (recognizing the Fundamental Laws of the Diné) and CO–72–

03 (adopting amendments to 7 N.N.C. § 204 choice of law provisions) expand the

Belone rule beyond the initial pleading requirement for asserting the

application of Diné bi beenahaz'áanii in our Courts.

Resolution CN–69–02

instructs our judges and justices to take notice of Diné bi beenahaz'áanii in

their decisions, when applicable.

Thus, the failure to raise Diné bi

beenahaz'áanii in the initial pleading will not lead to exclusion of the claim.

Importantly, we do not suggest that common law be raised with reckless abandon

wherever and whenever it strikes one's fancy, nor that it be raised in dilatory

fashion.

We suggest that whenever common law is raised, and whether it is

raised sua sponte or by a party, the parties should be given ample time and

opportunity to address the issue." Judy v. White, No. SC–CV–35–02, slip op. at

17 (Nav. Sup. Ct. August 2, 2004).

2. Child support

The role of the mother and father must complement each other so that what was

acquired through the joint labor is for the support, benefit, and safety of the

children. Watson v. Watson, No. SC–CV–40–07, slip op. at 15 (Nav. Sup. Ct.

December 14, 2009).

§ 205. Nahasdzáán dóó Yádi[hi[ Bits'33d66' Beehaz'áanii—Diné Natural Law

Diné Natural Law declares and teaches that:

A. The four sacred elements of life, air, light/fire, water and

earth/pollen in all their forms must be respected, honored and protected for

they sustain life; and

B. The six sacred mountains, Sisnaajini, Tsoodzi[, Dook'o'ooslííd, Dibé

Nitsaa, Dzi[ Na'oodi[ii, Dzi[ Ch'ool'í'í, and all the attendant mountains must

be respected, honored and protected for they, as leaders, are the foundation of

the Navajo Nation; and

C. 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; and

D. 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; and

E. Mother Earth and Father Sky is part of us as the Diné and the Diné is

part of Mother Earth and Father Sky; The Diné must treat this sacred bond with

love and respect without exerting dominance for we do not own our mother or

father; and

F. 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; and

G. It is the duty and responsibility of the Diné to protect and preserve

the beauty of the natural world for future generations.

History

CN–69–02, November 1, 2002.

Annotations

1. Application

"As the test we announce today requires clear intent in the plain language or

structure of a statute to override an exemption, we do not fill any omissions

or interpret ambiguous language under Diyin Nohookáá Dine' é Bi Beehaaz'áanii

(Navajo Common Law). Our general rules of statutory construction changed with

Council passage of Resolution Nos. CN–69–02 (November 13, 2002) (Amending Title

1 of the Navajo Nation Code to Recognize the Fundamental Laws of the Diné) and

CO–72–03 (October 24, 2003) (Amending Title VII of the Code), which mandate

that we 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."

Tso v. Navajo Housing

Authority, No. SC–CV–10–02, slip op. at 5–6 (Nav. Sup. Ct. August 26, 2004).

"Resolutions CN–69–02 (recognizing the Fundamental Laws of the Diné) and CO–72–

03 (adopting amendments to 7 N.N.C. § 204 choice of law provisions) expand the

Belone rule beyond the initial pleading requirement for asserting the

application of Diné bi beenahaz'áanii in our Courts.

Resolution CN–69–02

instructs our judges and justices to take notice of Diné bi beenahaz'áanii in

their decisions, when applicable.

Thus, the failure to raise Diné bi

beenahaz'áanii in the initial pleading will not lead to exclusion of the claim.

Importantly, we do not suggest that common law be raised with reckless abandon

wherever and whenever it strikes one's fancy, nor that it be raised in dilatory

fashion.

We suggest that whenever common law is raised, and whether it is

raised sua sponte or by a party, the parties should be given ample time and

opportunity to address the issue." Judy v. White, No. SC–CV–35–02, slip op. at

17 (Nav. Sup. Ct. August 2, 2004).

§ 206. Diyin Nohookáá Diné Bi Beehaz'áanii—Diné Common Law

The Diné Common Law declares and teaches that:

A. The knowledge, wisdom, and practices of the people must be developed

and exercised in harmony with the values and principles of the Diné Bi

Beenahaz'áanii;

and in turn, the written laws of the Navajo Nation must be

developed and interpreted in harmony with Diné Common Law; and

B. The values and principles of Diné Common Law must be recognized,

respected, honored and trusted as the motivational guidance for the people and

their leaders in order to cope with the complexities of the changing world, the

need to compete in business to make a living and the establishment and

maintenance of decent standards of living; and

C. The values and principles of Diné Common Law must be used to harness

and utilize the unlimited interwoven Diné knowledge, with our absorbed

knowledge from other peoples. This knowledge is our tool in exercising and

exhibiting self-assurance and self-reliance and in enjoying the beauty of

happiness and harmony.

History

CN–69–02, November 1, 2002.

Annotations

1. Application

"As the test we announce today requires clear intent in the plain language or

structure of a statute to override an exemption, we do not fill any omissions

or interpret ambiguous language under Diyin Nohookáá Dine' é Bi Beehaaz'áanii

(Navajo Common Law). Our general rules of statutory construction changed with

Council passage of Resolution Nos. CN–69–02 (November 13, 2002) (Amending Title

1 of the Navajo Nation Code to Recognize the Fundamental Laws of the Diné) and

CO–72–03 (October 24, 2003) (Amending Title VII of the Code), which mandate

that we 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."

Tso v. Navajo Housing

Authority, No. SC–CV–10–02, slip op. at 5–6 (Nav. Sup. Ct. August 26, 2004).

"Resolutions CN–69–02 (recognizing the Fundamental Laws of the Diné) and CO–72–

03 (adopting amendments to 7 N.N.C. § 204 choice of law provisions) expand the

Belone rule beyond the initial pleading requirement for asserting the

application of Diné bi beenahaz'áanii in our Courts.

Resolution CN–69–02

instructs our judges and justices to take notice of Diné bi beenahaz'áanii in

their decisions, when applicable.

Thus, the failure to raise Diné bi

beenahaz'áanii in the initial pleading will not lead to exclusion of the claim.

Importantly, we do not suggest that common law be raised with reckless abandon

wherever and whenever it strikes one's fancy, nor that it be raised in dilatory

fashion.

We suggest that whenever common law is raised, and whether it is

raised sua sponte or by a party, the parties should be given ample time and

opportunity to address the issue." Judy v. White, No. SC–CV–35–02, slip op. at

17 (Nav. Sup. Ct. August 2, 2004).

Chapter 3. Great Seal and Flag

History

Revision note.

consistency.

Sections 101–107 were redesignated §§ 301–307 for numerical

§ 301. Great Seal

The entry submitted by John Claw, Jr. as reproduced below, is adopted as

the Great Seal of the Navajo Nation.

History

CMY–18–88, May 3, 1988.

CJA–9–52, January 18, 1952.

Note. Two additional arrowheads were added to signify protection within the 50

states. Also, the word Tribe was changed to Nation.

Annotations

1. Construction and application

"As the test we announce today requires clear intent in the plain language or

structure of a statute to override an exemption, we do not fill any omissions

or interpret ambiguous language under Diyin Nohookáá Dine' é Bi Beehaaz'áanii

(Navajo Common Law). Our general rules of statutory construction changed with

Council passage of Resolution Nos. CN–69–02 (November 13, 2002) (Amending Title

1 of the Navajo Nation Code to Recognize the Fundamental Laws of the Diné) and

CO–72–03 (October 24, 2003) (Amending Title VII of the Code), which mandate

that we 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."

Tso v. Navajo Housing

Authority, No. SC–CV–10–02, slip op. at 5–6 (Nav. Sup. Ct. August 26, 2004).

"Resolutions CN–69–02 (recognizing the Fundamental Laws of the Diné) and CO–72–

03 (adopting amendments to 7 N.N.C. § 204 choice of law provisions) expand the

Belone rule beyond the initial pleading requirement for asserting the

application of Diné bi beenahaz'áanii in our Courts.

Resolution CN–69–02

instructs our judges and justices to take notice of Diné bi beenahaz'áanii in

their decisions, when applicable.

Thus, the failure to raise Diné bi

beenahaz'áanii in the initial pleading will not lead to exclusion of the claim.

Importantly, we do not suggest that common law be raised with reckless abandon

wherever and whenever it strikes one's fancy, nor that it be raised in dilatory

fashion.

We suggest that whenever common law is raised, and whether it is

raised sua sponte or by a party, the parties should be given ample time and

opportunity to address the issue." Judy v. White, No. SC–CV–35–02, slip op. at

17 (Nav. Sup. Ct. August 2, 2004).

§ 302. Flag

The Navajo Nation Council accepts and adopts the selected flag for the

Navajo Nation to symbolize the tradition, sovereignty and heritage of the

Navajo People.

History

CO–49–06, October 20, 2006.

Added the word "sovereignty."

CMY–75–68, May 21, 1968.

§ 303. Display of the flag

A. The Navajo Nation flag shall be displayed, except on days when the

weather is inclement, within, on, or near the main building or entrance of

every Navajo Nation facility, institution, or Navajo Nation Administration

building.

B. The Navajo Nation flag may be displayed within buildings, or outside

where it shall be displayed only from sunrise to sunset, and only on flagstaffs

or staffs affixed to buildings. The flag may be otherwise displayed in an

appropriate manner on special occasions.

C. The flag should be displayed during school days in or near every

school house or school yard.

History

CJA–6–70, January 8, 1970.

§ 304. Manner of display

A. The manner in which the Navajo Nation flag is displayed with or near

the flag of the United States shall be in conformance with laws governing the

display of the flag of the United States.

B. The Navajo Nation flag should be displayed in a proper and respectful

manner, conspicuously placed and well secured.

When the flag is displayed

other than being flown from a staff, it should be displayed flat, whether

indoors or out, or so suspended that its folds fan as free as though the flag

were staffed.

C. The Navajo

ceremoniously.

Nation

flag

should

be

hoisted

briskly

and

lowered

D. The Navajo Nation flag should be displayed above any flags on a single

staff, except the United States flag. If several flags are displayed together

with the Navajo Nation flag on different staffs, the Navajo Nation flag should

occupy the place of central or greatest prominence, except when the United

States flag is displayed.

When displayed with the United States flag, the

Navajo Nation flag should be displayed immediately to the left of the United

States flag.

E. The President of the Navajo Nation is hereby authorized to order that

the Navajo Nation flag be displayed at half staff, whenever appropriate, and to

prescribe the length of time the flag should be so displayed. The flag, when

displayed at half staff, should first be hoisted to the peak of the staff for

an instant and then lowered to the half-staff position. The flag should again

be raised to the peak of the staff before it is lowered for the day.

History

CO–49–06, October 20, 2006.

Amended Subsection (D).

CJA–6–70, January 8, 1970.

§ 305. Proper methods of handling, storage, or destruction

A. The flag should never touch anything beneath it, such as the ground,

the floor, water, or merchandise, and should always be kept or placed in a

clean container or wrapping used for the purpose of keeping the flag.

B. The flag should never be used as drapery of any sort whatsoever, never

festooned, drawn back, nor up, in folds, but always allowed to fall free.

C. The flag should never be fastened, displayed, used, or stored in such

a manner as will permit it to be easily torn, soiled, or damaged in any way.

D. The flag should never have placed upon it, nor on any part of it, nor

attached to it any mark, insignia, letter, word, figure, design, picture, or

drawing of any nature.

E. The flag should never be used for advertising purposes in any manner

whatsoever.

It should not be embroidered on such articles as cushions or

handkerchiefs and the like, printed or otherwise impressed on paper napkins or

boxes or anything that is designed for temporary use and discard; or used as

any portion of a costume or athletic uniform. Advertising signs should not be

fastened to a staff or halyard from which the flag is flown.

F. The flag, when it is in such condition that it is no longer a fitting

emblem for display, should be destroyed in a dignified way, preferably by

burning by the Department of Navajo Veterans Affairs or a bonafide veterans

organization.

History

CO–49–06, October 20, 2006.

Amended Subsection (F).

CJA–6–70, January 8, 1970.

§ 306. Desecration of the Navajo Nation flag

Any person who knowingly casts contempt upon the Navajo Nation flag by

publicly mutilating, defacing, defiling, burning, or trampling upon it shall be

deemed to have committed an offense.

History

CJA–6–70, January 8, 1970.

§ 307. Penalties

Any person found to have committed the offense, defined and established

by 1 N.N.C. § 306, shall be fined not more than five hundred dollars ($500.00)

or imprisoned for not more than 30 days, or both.

History

CO–49–06, October 20, 2006.

CJA–6–70, January 8, 1970.

Chapter 5. Navajo Nation

History

Revision note.

Sections 301 and 302 were redesignated §§ 501 and 502 for

numerical consistency.

Revision note.

consistency.

Sections 351–355 were redesignated §§ 551–555 for numerical

Subchapter 1. Designation

§ 501. Use of term "Navajo Nation";

certification of resolutions;

address

A. The President of the Navajo Nation and all departments, divisions,

agencies, enterprises, and entities of the Navajo Nation shall use the phrase

"Navajo Nation" in describing the lands and people of the Navajo Nation.

B. All resolutions of the Navajo Nation government shall be certified as

being duly enacted at "Window Rock, Navajo Nation (Arizona)".

C. All correspondence, stationery and letterhead, of all divisions,

agencies, etc., of the Navajo Nation shall use the designation "Navajo Nation."

For example, Navajo Nation letterhead should read "The Navajo Nation, Window

Rock, Navajo Nation (Arizona) 86515," or "Navajo Police Department, Crownpoint,

Navajo Nation (New Mexico) 87313".

History

CJY–55–85, July 25, 1985.

ACAP–101–69, April 15, 1969.

Revision note.

Reworded for grammatical content, statutory form, and clarity.

§ 502. Spelling of "Navajo"

All use of the name "Navajo" shall use the spelling "j", not "h".

History

CJY–55–85, July 25, 1985.

ACAP–101–69, April 15, 1969.

Revision note.

Reworded for grammatical content, statutory form, and clarity.

Subchapter 2. Navajo Sovereign Immunity Act

History

Redesignation.

consistency.

Sections 351–355 were redesignated §§ 551–555 for numerical

§ 551. Establishment

There is established the Navajo Sovereign Immunity Act.

History

CMY–42–80, May 6, 1980.

Revision note.

Slightly reworded for purposes of statutory form.

Annotations

1. Construction and application

"We hold that private individuals, such as the Petitioners, may not raise

sovereign immunity as a defense against suits."

Owens, et al. v. Honorable

Allen Sloan, 7 Nav. R. 215, (Nav. Sup. Ct. 1996).

Formerly §§ 351–355.

"Whether the Act applies is not determined by who the

plaintiffs are, but by who the defendants are and in what capacity the

defendants are acting." MacDonald v. Yazzie, 6 Nav. R. 95, 96 (Nav. Sup. Ct.

1989).

Re: previous sov. Imm. Act at 7 N.T.C. §§ 851–855. "The 1980 Navajo Sovereign

Immunity Act, 7 N.T.C. §§ 851 to 855, does not allow implied waivers of the

Navajo Nation's immunity from suit. Only an unequivocally expressed waiver is

allowed by the 1980 Navajo Sovereign Immunity Act. [....

] Therefore, the

filing of a compulsory counterclaim by the Navajo Nation does not waive its

immunity from suit."

Sup. Ct. 1988).

TBI Contractors v. Navajo Tribe, 6 Nav. R. 57, 61 (Nav.

§ 552. Definitions

For the purposes of this Subchapter, "Navajo Nation" means:

A. The Navajo Nation Council;

B. The President, Navajo Nation;

C. The Vice–President, Navajo Nation;

D. The Delegates to the Navajo Nation Council;

E. The Certified Chapters of the Navajo Nation;

F. The Grazing Committees of the Navajo Nation;

G. The Land Boards of the Navajo Nation;

H. The Executive Branch of the Navajo Nation government;

I. The Judicial Branch of the Navajo Nation government;

J. The Commissions of the Navajo Nation government;

K. The Committees of the Navajo Nation Council;

L. The Legislative Branch of the Navajo Nation government;

M. The Enterprises of the Navajo Nation;

N. Navajo Community College;

O. The Kayenta Township and the Kayenta Township Commission;

P. Navajo Housing Authority;

Q. Navajo Nation Gaming Enterprise;

R. Tribal Gaming Enterprises.

History

CJA–04–07, January 24, 2007. Override of Presidential veto of

December 22, 2006. Added Subsection (R), Tribal Gaming Enterprises.

CS–34–06, September 26, 2006.

Enterprise.

CO–55–04, October 19, 2004.

CAU–47–03, August 29, 2003.

CD–62–06,

Added Subsection (Q), Navajo Nation Gaming

CJY–42–03, July 25, 2003.

CMY–28–88, May 6, 1988.

CMY–42–80, May 6, 1980.

Annotations

1. Construction and application

"Based on this history, it is clear that the Resolution did not merely

'clarify' an ambiguity, but altered the legal landscape by purporting to bring

NHA under the Sovereign Immunity Act." Phillips v. Navajo Housing Authority,

No. SC–CV–13–05, slip op. at 6 (Nav. Sup. Ct. December 8, 2005).

"NHA is not considered the 'Navajo Nation' in the act, but instead its immunity

is covered by a separate Section of the Navajo Nation Code directly related to

NHA, 6 N.N.C. § 616(b)(1)." NHA v. Bluffview Resident Management Corporation,

Board of Directors, et al., No. SC–CV–35–00, slip op. at 9 (Nav. Sup. Ct.

December 17, 2003).

"For the reasons stated, CIT was not covered by the Sovereign Immunity Act's

umbrella of "enterprises of the Navajo Nation" in April 1995."

Blaze

Construction, Inc. v. Crownpoint Institute of Technology, 7 Nav. R. 296, 299

(Nav. Sup. Ct. 1997).

"We hold that private individuals, such as the Petitioners, may not raise

sovereign immunity as a defense against suits."

Owens, et al. v. Honorable

Allen Sloan, 7 Nav. R. 215, (Nav. Sup. Ct. 1996).

Formerly §§ 351–355.

"Whether the Act applies is not determined by who the

plaintiffs are, but by who the defendants are and in what capacity the

defendants are acting." MacDonald v. Yazzie, 6 Nav. R. 95, 96 (Nav. Sup. Ct.

1989).

Re: previous sov. Imm. Act at 7 N.T.C. §§ 851–855. "The 1980 Navajo Sovereign

Immunity Act, 7 N.T.C. §§ 851 to 855, does not allow implied waivers of the

Navajo Nation's immunity from suit. Only an unequivocally expressed waiver is

allowed by the 1980 Navajo Sovereign Immunity Act. [....

] Therefore, the

filing of a compulsory counterclaim by the Navajo Nation does not waive its

immunity from suit." TBI Contractors v. Navajo Tribe, 6 Nav. R. 57, 61 (Nav.

Sup. Ct. 1988).

2. Navajo Housing Authority

"This case concerns whether a monetary judgment against the Navajo Housing

Authority (NHA) may be enforced, or whether sovereign immunity, Navajo

statutory exemption from execution, or a circular issued by the U.S. Office of

Management and Budget (OMB) prohibits the enforcement. The Court holds that

only certain NHA funds are exempt from execution, and that the judgment must be

satisfied with those that are non-exempt." Tso v. Navajo Housing Authority, No.

SC–CV–20–06, slip op. at 1 (Nav. Sup. Ct. December 6, 2007).

§ 553. General principles of sovereign immunity

A. The Navajo Nation is a sovereign nation which is immune from suit.

B. Sovereign immunity is an inherent attribute of the Navajo Nation as a

sovereign nation and is neither judicially created by any court, including the

Courts of the Navajo Nation, nor derived from nor bestowed upon the Navajo

Nation by any other nation or government.

C. The Courts of the Navajo Nation are created by the Navajo Nation

Council within the government of the Navajo Nation and the jurisdiction and

powers of the courts of the Navajo Nation, particularly with regard to suits

against the Navajo Nation, are derived from and limited by the Navajo Nation

Council as the governing body of the Navajo Nation.

D. The special authority of the Congress of the United States relating to

Indian affairs derives from and is consistent with the recognition and

fulfillment of its unique trust obligations to protect and preserve the

inherent attributes of Indian tribal self-government.

E. The Navajo Nation Council has enacted the Navajo Nation Bill of Rights

in recognition of the interests and rights of the People of the Navajo Nation,

from whom the sovereignty of the Navajo Nation derives, as express

self-limitations upon the exercise of its sovereign powers and has provided

herein for specific remedies and redress for individuals from the government of

the Navajo Nation as only the governing body of the Navajo Nation is empowered

and responsible to determine on behalf of the People of the Navajo Nation.

F. Neither the President, Navajo Nation, the Vice-President, Navajo

Nation, nor the delegates to the Navajo Nation Council may be subpoenaed or

otherwise compelled to appear or testify in the courts of the Navajo Nation or

any proceeding which is under the jurisdiction of the courts of the Navajo

Nation concerning any matter involving such official's actions pursuant to

his/her official duties.

History

CMY–28–88, May 6, 1988.

CMY–42–80, May 6, 1980.

Annotations

1. Construction and application

"We hold that private individuals, such as the Petitioners, may not raise

sovereign immunity as a defense against suits."

Owens, et al. v. Honorable

Allen Sloan, 7 Nav. R. 215, (Nav. Sup. Ct. 1996).

Formerly §§ 351–355.

"Whether the Act applies is not determined by who the

plaintiffs are, but by who the defendants are and in what capacity the

defendants are acting." MacDonald v. Yazzie, 6 Nav. R. 95, 96 (Nav. Sup. Ct.

1989).

Re: previous sov. Imm. Act at 7 N.T.C. §§ 851–855. "The 1980 Navajo Sovereign

Immunity Act, 7 N.T.C. §§ 851 to 855, does not allow implied waivers of the

Navajo Nation's immunity from suit. Only an unequivocally expressed waiver is

allowed by the 1980 Navajo Sovereign Immunity Act. [....

] Therefore, the

filing of a compulsory counterclaim by the Navajo Nation does not waive its

immunity from suit." TBI Contractors v. Navajo Tribe, 6 Nav. R. 57, 61 (Nav.

Sup. Ct. 1988).

2. Immunity

"Under the Navajo Sovereign Immunity Act, the Navajo Nation is immune from

suit. This immunity from suit is an inherent attribute of Navajo sovereignty

and not judicially created by any court, including the Navajo courts, and is

not bestowed upon the Nation by the United States government, or any other

government." Raymond v. Navajo Agricultural Products Industry, et al., 7 Nav.

R. 142, 143 (Nav. Sup. Ct. 1995).

Re: Sov. Imm. Act definition of Navajo Nation: "The suit challenges certain

resolutions passed by the Navajo Tribal Council.

When the Navajo Tribal

Council and the delegates to that body are performing legislative functions

they fall within the definition of Navajo Nation and the [Navajo Sovereign

Immunity] Act applies." Plummer v. Brown II, 6 Nav. R. 88, 91 (Nav. Sup. Ct.

1989).

3. Powers of council

"The Navajo Nation Council, as the governing body of the sovereign Navajo

Nation, has the power to limit the jurisdiction of the Navajo courts,

especially in suits against the Nation."

Raymond v. Navajo Agricultural

Products Industry, et al., 7 Nav. R. 142, 143 (Nav. Sup. Ct. 1995).

4. Remedies

"The Act recognizes that the People of the Nation have rights and interests (as

enacted in the Navajo Nation Bill of Rights), and that these rights and

interests are limitations of the Nation's sovereign powers.

Thus, the Act

provides individuals with specific remedies and redress from governmental

actions which are violative of the people's rights."

Raymond v. Navajo

Agricultural Products Industry, et al., 7 Nav. R. 142, 143 (Nav. Sup. Ct.

1995).

5. Jurisdiction

Formerly 1 N.T.C. §§ 353 & 354.

"We will not adopt Chairman MacDonald's

argument that, because this is a unique case where the Navajo Nation has sued

itself, we must ignore the express tribal code law on suits against the Navajo

Nation. If we ignore the provisions in the Act, in effect the Navajo courts

would be creating their own jurisdiction—a power Navajo courts do not have.

Navajo code law expressly provides that the Navajo courts can exercise

jurisdiction over suits against the Navajo Nation only when authorized by the

Navajo Tribal Council." Plummer v. Brown II, 6 Nav. R. 88, 92 (Nav. Sup. Ct.

1989).

§ 554. Exceptions to the general principles of sovereign immunity; purpose and

intent

A. The purpose and intent of the Navajo Sovereign Immunity Act is to

balance the interest of the individual parties in obtaining the benefits and

just redress to which they are entitled under the law in accordance with

orderly process of the Navajo government, while at the same time protecting the

legitimate public interest in securing the purpose and benefits of their public

funds and assets, and the ability of their government to function without undue

interference in furtherance of the general welfare and the greatest good of all

people. All of the provisions of this Act shall be applied as hereinafter set

forth in order to carry out this stated purpose and intent of the Navajo Nation

Council, as the governing body of the Navajo Nation.

B. The Navajo Nation may be sued in the courts of the Navajo Nation when

explicitly authorized by applicable federal law.

C. The Navajo Nation may be sued only in the courts of the Navajo Nation

when explicitly authorized by Resolution of the Navajo Nation Council.

D. Any exception to the immunity of the Navajo Nation and assumption of

liability pursuant to this Act does not apply in circumstances in which such

liability has been or is hereafter assumed by third parties, including any

other governmental body or agency, nor for which the Navajo Nation has been or

is hereafter indemnified or held harmless by such parties, to the extent of

such assumption or indemnification of liability. Nor does any liability assumed

by the Navajo Nation pursuant to this Act extend to any party or parties as

third party beneficiary or otherwise, other than the party or parties to whom

such liability is expressly assumed, and then only to the extent, circumstances

and conditions specified thereby.

E. Any liability of a public entity or public officer, employee or agent

assumed pursuant to this Act is subject to any other immunity of that public

entity or person and is subject to any defense which would be available to the

public entity or person if they were private entities and/or persons.

1. A public entity is not liable for any injury or damage resulting

from an act or omission of any public officer, employee or agent if that

party is not liable; nor for the actions or omissions of public officers,

employees or agents which are determined to be contrary to or without

authorization or otherwise outside or beyond the course and scope of such

officer's, employee's or agent's authority.

2. This Section does not immunize a public officer, employee or

agent from individual liability, not within Navajo Nation insurance

coverage, for the full measure of the recovery applicable to a person in

the private sector, if it is established that such conduct was outside

the scope of his or her employment and/or authority.

3. Volunteers duly authorized by the Navajo Nation or any political

subdivision thereof, in performing any of their authorized functions or

duties or training for such functions or duties, shall have the same

degree of responsibility for their actions and enjoy the same immunities

as officers and employees of the Navajo Nation and its governmental

entities performing similar work.

F. The Navajo Nation may be sued only in the courts of the Navajo Nation

with respect to any claim which is within the express coverage and not excluded

by either commercial liability insurance carried by the Navajo Nation or an

established Navajo Nation self-insured and/or other claims program of the

Navajo Nation government, approved and adopted pursuant to the laws of the

Navajo Nation and further, subject to the following provisions and limitation:

1. No judgment, order or award pertaining to any claims permitted

hereunder shall be for more than the limits of valid and collectable

liability insurance policies carried by the Navajo Nation covering each

such claim and in force at the time of such judgment, including

deductible amounts to the extent appropriated by the Navajo Nation

Council; nor for more than the amount of coverage provided for each such

claim under established claim reserves as appropriated by the Navajo

Nation Council, or otherwise established pursuant to any self-insured

liability and/or other Navajo Nation government claims program, approved

and adopted pursuant to the laws of the Navajo Nation;

2. Any such judgment, order or award may only be satisfied pursuant

to the express provisions of the policy(ies) of liability insurance

and/or established self-insured or government claims program of the

Navajo Nation which are in effect at the time of each such judgment,

order or award. Regardless of the existence of applicable and collectible

commercial insurance coverage at the time any cause of action arises or

suit is filed against the Navajo Nation, in no event shall any funds or

other property of the Navajo Nation be liable for satisfaction of any

judgment against the Navajo Nation and/or other insureds thereunder,

beyond the limits of any amounts specifically appropriated and/or

reserved therefor at the time of judgment, which shall be modified by law

in accordance with such limitation of funds. This limitation shall apply

to any deductible or retained liability or otherwise resulting from any

inability or insolvency occurring any time prior to entry of such

judgment;

3. No cause of action shall lie and no judgment may be entered or

awarded on any claim for punitive or exemplary damages against the Navajo

Nation; nor against any officer, employee or agent of the Navajo Nation

acting within the course and scope of the authority of such office,

employment or agency;

4. Notwithstanding any provisions of this Subsection (F), there

shall be no exception to the sovereign immunity of public entities,

officials, employees or agents of the Navajo Nation from claims for

injury or damage alleged to have been sustained by:

a. Policy decisions or the exercise of discretion made by a

public official, employee or agent in the exercise or judgment or

discretion vested in the entity or individual;

b. A decision made in good faith and without gross negligence

in carrying out the law, except that this provision does not immunize a

public entity, officer, employee or agent from liability for false

arrest, false imprisonment or malicious prosecution;

c.

Legislative

or

judicial

action

or

inaction

or

administrative action or inaction of a legislative or judicial nature,

such as adopting or failure to adopt a law or by failing to enforce a

law;

d. Issuance, denial, suspension or revocation of, or the

failure or refusal to issue, deny, suspend or revoke, any permit,

license, certificate, approval, order or similar authorization, nor by

the termination or reduction of benefits under a public assistance

program; if the public entity, officer, employee or agent of the Navajo

Nation is authorized by law to determine whether or not such

authorization or benefits should be issued, denied, suspended or revoked;

e. Probation, parole, furlough or release from confinement of

a prisoner or other detainee or from the terms and conditions or the

revocation thereof, except upon a showing of gross negligence;

f. Any injury or damage caused by an escaping or escaped

person or prisoner, a person resisting arrest or by a prisoner to himself

or herself, or to any other prisoner, except upon showing of gross

negligence;

g. The enumeration of the above immunities shall not be

construed to waive any other immunities, nor to assume any liability

except as explicitly provided in this Act.

5. Subject to all other provisions of this Act, the express

coverage of any commercial liability policy insuring the Navajo Nation or

of any self-insurance program established by the Navajo Nation, for sums

which the Navajo Nation as insured shall become legally obligated to pay

as damage because of personal injury and/or property damages shall

include liability for such actual monetary loss and damage which is

established by clear and convincing evidence, to be the direct and

proximate result of the wrongful deprivation or impairment of civil

rights as set forth in Chapter 1 of Title 1 of the Navajo Nation Code,

the Bill of Rights of the Navajo Nation. In the sound exercise of

judicial discretion, the courts of the Navajo Nation may, to the extent

deemed proper and appropriate in any action for damages for wrongful

deprivation or impairment of civil rights as provided herein, award

necessary costs of suit and/or reasonable fees; based upon time and

value, incurred for legal representation; or require each or any party

thereto, to bear their own respective costs and/or legal fees incurred

therein.

G. Any officer, employee or agent of the Navajo Nation may be sued in the

courts of the Navajo Nation to compel him/her to perform his/her responsibility

under the expressly applicable laws of the United States and of the Navajo

Nation, which shall include the Bill of Rights of the Navajo Nation, as set

forth in Chapter 1, Title 1, Navajo Nation Code.

1. Relief awarded by the courts of the Navajo Nation under this

Subsection (G) shall be limited to declaratory or prospective mandamus or

injunctive relief and in accordance with the express provisions of the

laws of the United States and the Navajo Nation establishing the

responsibility for such performance. The courts may further, in the

exercise of judicial discretion, award necessary costs of suit and/or

reasonable fees for legal representation, in the same manner and to the

same extent provided in Paragraph (5) Subsection (F) hereof.

2. No relief as provided under this Subsection (G) may be awarded

by the courts of the Navajo Nation without actual notice to the

defendant(s), nor before the time provided in this Act for answering

complaints, motions or orders to show cause, nor without opportunity for

full hearing of all defenses and objection thereto, in accordance with

all provisions of this Act all other applicable law(s).

3. This Subsection (G) shall not apply to the President of the

Navajo Nation, the Vice–President of the Navajo Nation, or the delegates

to the Navajo Nation Council.

H. Contracted or otherwise retained counsel and other attorneys employed

by the Navajo Nation may be sued for malpractice when authorized by the

Government Services Committee of the Navajo Nation Council.

I. The Navajo Nation may be sued by Navajo contractors and/or their

sureties on construction development or reclamation contracts, provided:

1. The contractor's contract is properly

appropriate Committee of the Navajo Nation Council.

approved

by

the

2. The contract is to be performed by a Navajo contractor as

defined herein and is performed within the territorial jurisdiction of

the Navajo Nation.

3. Damages against the Navajo Nation under the consent to suit

granted by the Navajo Nation to Navajo contractors and/or their sureties

shall be limited to damages claimed under applicable principles of

contract damage law, including damages necessary to compensate for

fulfilling the obligations under the bond, which shall include properly

authorized change orders and properly authorized performance under owner

directives to proceed done under protest, but shall not include:

a. Punitive damages;

b. Damages from claims arising in tort;

c. Damages caused by delays in performance due to

governmental review and approval procedures of the Navajo Nation or other

governmental entity having the right to review and/or approve the

contract or project; or

d. Damages caused by delay, contract modification, or

contract termination, due to delay in or failure to receive matching

funds for the contract or project.

4. Damages against the Navajo Nation claimed above shall be limited

to the dollar amount of the contract including properly approved change

orders.

5. The Navajo Nation shall be subject to suit under this Subsection

(I) only in the courts of the Navajo Nation. In determining the Navajo

Nation's obligations under this Subsection (I), the courts of the Navajo

Nation shall not give any preclusive effect against the Navajo Nation of

any determination by any judicial or quasi-judicial body except the

Courts of the Navajo Nation.

6. Navajo Contractor shall mean any contractor entitled to a

priority number one, number two or number three pursuant to the Navajo

Nation Business Opportunity Act.

J. The

provided:

Navajo

Nation

may

be

ordered

to

proceed

with

arbitration,

1. The agreement is properly approved and executed on behalf of the

Navajo Nation according to all applicable laws of the Navajo Nation;

2. All agreements entered into under the Navajo Nation Arbitration

Act shall be approved by the Navajo Nation Department of Justice; and

3. The arbitration process shall be conducted in accordance with

the Navajo Nation Arbitration Act, 7 N.N.C. § 1101 et seq.

K. The Courts of the Navajo Nation shall have original and exclusive

jurisdiction to enforce an arbitral award against the Navajo Nation when such

suit is specifically provided for in an agreement containing an arbitration

clause that is entered into in accordance with the Navajo Nation Arbitration

Act. The Navajo Nation shall be subject to suit under this Subsection (K)

provided that:

1. The agreement is properly approved and executed on behalf of the

Navajo Nation according to all applicable laws of the Navajo Nation;

2. All agreements entered into under the Navajo Nation Arbitration

Act shall be approved by the Navajo Nation Department of Justice;

3. The award of damages shall be compensatory damages only, and

shall not exceed the dollar amount of the contract including properly

approved amendments, but shall not include:

a. Punitive or exemplary damages;

b. Damages from claims arising in tort;

c. Damages caused by delays in performance due to

governmental review and approval procedures of the Navajo Nation or other

governmental entity having the right to review and/or approve the

contract; or

d. Damages incurred by those not a party to the contract,

including third party beneficiaries or others who receive direct or

indirect benefits from the agreement.

4. The courts may, in the exercise of judicial discretion, award

necessary costs of suit and/or reasonable fees for legal representation,

in the same manner and to the same extent provided in Section 554(F)(5)

hereof;

5. In determining the Navajo Nation's obligations under this

Subsection (K), the courts of the Navajo Nation shall not give any

preclusive effect against the Navajo Nation of any determination by any

judicial or quasi-judicial body except the courts of the Navajo Nation;

and

6. The arbitration process shall be conducted in accordance with

the Navajo Nation Arbitration Act, 7 N.N.C. § 1101 et seq.

History

CJA–05–07, January 24, 2007. Added Subsections (J) and (K).

Note. Previous reference to the Navajo Nation Business Preference Law at §

554(I)(6) was changed to the Navajo Nation Business Opportunity Act, pursuant

to CAP–37–02, April 19, 2002. See, 5 N.N.C. § 201 et seq.

CJY–40–92, July 24, 1992.

CMY–28–88, May 6, 1988.

CD–60–86, December 11, 1986.

CJY–55–85, July 25, 1985.

CMY–42–80, May 6, 1980.

Annotations

1. Construction and application

"Section 554(G) of the Act permits suit against any officer, employee or agent

of the Navajo Nation to compel him or her to perform responsibilities under the

expressly applicable laws of the United States and the Navajo Nation." Judy v.

White, No. SC–CV–35–02, slip op. at 15 (Nav. Sup. Ct. August 2, 2004).

"The Act explicitly denies any liability on the part of the Nation for 'the

actions or omissions of public officers, employees or agents which are

determined to be contrary to or without authorization or otherwise outside or

beyond the course and scope of such officer's, employee's or agent's

authority." Chapo, et al. v. Navajo Nation, et al., No. SC–CV–68–00, slip op.

at 8 (Nav. Sup. Ct. March 11, 2004).

"A personal capacity suit seeks compensation from the individuals themselves,

not from the Navajo Nation." Chapo, et al. v. Navajo Nation, et al., No. SC–

CV–68–00, slip op. at 8 (Nav. Sup. Ct. March 11, 2004).

"Official capacity suits are suits naming individual officials or employees,

but in reality seeking compensation from the Navajo Nation." Chapo, et al. v.

Navajo Nation, et al., No. SC–CV–68–00, slip op. at 8 (Nav. Sup. Ct. March 11,

2004).

"One purpose of the Act is for the Navajo Nation to assume, under certain

circumstances, responsibility for the actions of its officials and employees."

Chapo, et al. v. Navajo Nation, et al., No. SC–CV–68–00, slip op. at 6 (Nav.

Sup. Ct. March 11, 2004).

"We hold that private individuals, such as the Petitioners, may not raise

sovereign immunity as a defense against suits."

Owens, et al. v. Honorable

Allen Sloan, 7 Nav. R. 215, (Nav. Sup. Ct. 1996).

"The Navajo Nation may be sued when explicitly authorized by applicable federal

law." Raymond v. Navajo Agricultural Products Industry, et al., 7 Nav. R. 142,

143 (Nav. Sup. Ct. 1995).

Formerly § 354. "Neither can the Navajo Tribal Council nor its delegates be

sued based upon their actions in performing legislative functions." Plummer v.

Brown II, 6 Nav. R. 88, 93 (Nav. Sup. Ct. 1989).

Formerly §§ 351–355.

"Whether the Act applies is not determined by who the

plaintiffs are, but by who the defendants are and in what capacity the

defendants are acting." MacDonald v. Yazzie, 6 Nav. R. 95, 96 (Nav. Sup. Ct.

1989).

Re: previous Sov. Imm. Act at 7 N.T.C. § 854. "The relief under this Section

of the Navajo Tribal Code is limited to declaratory or injunctive relief. TBI

prays for money damages in its complaint, therefore, this Section is

inapplicable to the case at bar. We hold that, as this is a breach of contract

action for money damages, the suit may not proceed under 7 N.T.C. § 854(d)."

TBI Contractors v. Navajo Tribe, 6 Nav. R. 57, 61 (Nav. Sup. Ct. 1988).

" ... [T]he ICRA does not explicitly authorize suit against the Navajo Nation

in Navajo courts ... " Johnson v. The Navajo Nation, 5Nav. R. 192, 199 (Nav.

Sup. Ct. 1987).

2. Construction with federal law

"It is the finding of this Court that the ICRA is not an applicable federal law

under the meaning of Section 354(b) of the Act. In addition, the ICRA does not

explicitly waive the Nation's immunity from suit as required by the Act."

Raymond v. Navajo Agricultural Products Industry, et al., 7 Nav. R. 142, 143

(Nav. Sup. Ct. 1995).

3. Exceptions to immunity

"The Court agrees with Appellants that they generally may file claims for

injunctive and declaratory relief, and the 'policy decision' exception does not

apply. By its plain language, Subsection (F)(4)'s exceptions apply only to the

insurance

coverage

waiver

in

Subsection

F.

The

key

language

is

'[n]otwithstanding any provision of this Subsection (F) there shall be no

exception to ... sovereign immunity ... from claims for injury or damage.' The

exceptions, including the 'policy decision' exception, are clearly intended

only to restrict suits under Subsection (F), that is, under an insurance policy

for money damages. Suits seeking injunctive and declaratory relief are covered

by a separate Subsection of the Act. Subsection G states that [ ... ] 1 N.N.C.

§ 554(G) (2005). That subsection limits the remedy to 'declaratory or

prospective injunctive relief.' 1 N.N.C. § 554(G)(1) (2005). However, there is

no exception similar to Subsection (F)(a). Taken together, these provisions

allow suits for injunctive and declaratory relief, and there is not 'policy

decision' exception for these kinds of suits." Bennett, et al. v. Shirley, et

al., No. SC–CV–21–07, slip op. at 5–6 (Nav. Sup. Ct. November 29, 2007).

"In a legal malpractice action, whether there is insurance coverage is not a

justifiable issue until after the plaintiff has satisfied the legal malpractice

subsection at Section 354(h)." Navajo Nation, et al. v. Cleveland, et al., 7

Nav. R. 185, 187 (Nav. Sup. Ct. 1995).

"The Council reenacted the legal malpractice language in 1988 and it is still

Navajo Nation law." Navajo Nation, et al. v. Cleveland, et al., 7 Nav. R. 185,

186 (Nav. Sup. Ct. 1995).

"The final exception to the Nation's immunity from suit under the Act states

that '[a]ny officer, employee or agent of the Navajo Nation may be sued in the

[c]ourts of the Navajo Nation to compel him/her to perform his/her

responsibility under the expressly applicable laws of the United States and of

the Navajo Nation, which shall include the Bill of Rights of the Navajo Nation.

1 N.N.C. § 354(g)(1).' " Raymond v. Navajo Agricultural Products Industry, et

al., 7 Nav. R. 142, 145 (Nav. Sup. Ct. 1995).

"The third exception is for claims within the express coverage and not excluded

by the commercial liability insurance carried by the Nation.

1 N.N.C. §

354(f)." Raymond v. Navajo Agricultural Products Industry, et al., 7 Nav. R.

142, 144 (Nav. Sup. Ct. 1995).

"The second exception to the Nation's immunity from suit under the Sovereign

Immunity Act is when the Navajo Nation Council explicitly authorizes suit by

resolution.

1 N.N.C. § 354( c)."

Raymond v. Navajo Agricultural Products

Industry, et al., 7 Nav. R. 142, 144 (Nav. Sup. Ct. 1995).

Formerly 1 N.T.C. §§ 353 & 354.

"We will not adopt Chairman MacDonald's

argument that, because this is a unique case where the Navajo Nation has sued

itself, we must ignore the express tribal code law on suits against the Navajo

Nation. If we ignore the provisions in the Act, in effect the Navajo courts

would be creating their own jurisdiction—a power Navajo courts do not have.

Navajo code law expressly provides that the Navajo courts can exercise

jurisdiction over suits against the Navajo Nation only when authorized by the

Navajo Tribal Council." Plummer v. Brown II, 6 Nav. R. 88, 92 (Nav. Sup. Ct.

1989).

"Once the court has obtained jurisdiction under the insurance exception, that

jurisdiction cannot be defeated by a later insolvency of the insurance

company."

Johnson v. The Navajo Nation, 5 Nav. R. 192, 197 (Nav. Sup. Ct.

1987).

Referring to previous Sov. Imm. Act at 7 N.T.C. § 854(c) re:

insurance

exception. "The law requires that the plaintiff's claim be covered under the

insurance policy before the court can assert jurisdiction over the Navajo

Nation."

Johnson v. The Navajo Nation, 5 Nav. R. 192, 197 (Nav. Sup. Ct.

1987).

4. Civil rights

"A person seeking redress of civil rights violations must establish that Navajo

Nation courts have jurisdiction to hear her claims. If the claimant is suing

the Nation, the claimant must, as a jurisdictional predicate, establish that

the Nation's immunity from suit has been waived."

Raymond v. Navajo

Agricultural Products Industry, et al., 7 Nav. R. 142, 145 (Nav. Sup. Ct.

1995).

"The Nation does not attempt to hide behind sovereign immunity for civil rights

claims.

The Act itself mandates that commercial liability policies must

contain a provision regarding civil rights violations. Under Section 354(f)(5)

of the Act, the Nation's commercial liability policies must contain a provision

covering damages resulting from 'wrongful deprivation of civil rights.' "

Raymond v. Navajo Agricultural Products Industry, et al, 7 Nav. R. 142, 145

(Nav. Sup. Ct. 1995).

5. Waivers of immunity

"It is without question that our government cannot be sued except by its

expressed consent. The Navajo Sovereign Immunity Act is the expression of that

consent.

It provides the means and manner by which suit will be brought

against the sovereign." Judy v. White, No. SC–CV–35–02, slip op. at 11 (Nav.

Sup. Ct. August 2, 2004).

"Whether the official or employee acted in their official or personal capacity

also controls whether the defenses under the Act are available. The Act waives

the Navajo Nation's immunity from certain types of suits, including civil

rights claims." Chapo, et al. v. Navajo Nation, et al., No. SC–CV–68–00, slip

op. at 8–9 (Nav. Sup. Ct. March 11, 2004).

"Raymond is not seeking prospective mandamus or injunctive relief, but is

specifically seeking an amount equal to 'a sum calculated to reimburse her or

her damage,' i.e., retrospective monetary relief.

Accordingly, this Court

holds that Raymond's claims do not constitute a waiver of the Nation's immunity

from suit under Section 354(g) of the Act."

Raymond v. Navajo Agricultural

Products Industry, et al., 7 Nav. R. 142, 145 (Nav. Sup. Ct. 1995).

Re: previous 7 N.T.C. § 854(c): "The ICRA is federal law, which is applicable

to the Navajo Nation, but it does not expressly waive the Navajo Nation's

immunity from suit as required by our statute.

Our statute requires the

federal law or regulation relied upon to explicitly state that the Navajo

Nation may be sued." TBI Contractors v. Navajo Tribe, 6 Nav. R. 57, 60 (Nav.

Sup. Ct. 1988).

Re: previous sov. Imm. Act at 7 N.T.C. §§ 851–855. "The 1980 Navajo Sovereign

Immunity Act, 7 N.T.C. §§ 851 to 855, does not allow implied waivers of the

Navajo Nation's immunity from suit. Only an unequivocally expressed waiver is

allowed by the 1980 Navajo Sovereign Immunity Act. [....

] Therefore, the

filing of a compulsory counterclaim by the Navajo Nation does not waive its

immunity from suit."

Sup. Ct. 1988).

TBI Contractors v. Navajo Tribe, 6 Nav. R. 57, 61 (Nav.

6. Special prosecutor

"The [Special Prosecutor] Act blends well with the Sovereign Immunity Act

because it provides a remedy for the Navajo Nation against officers or

employees who exceeded their authority."

MacDonald, Sr. v. Navajo Nation ex

rel. Rothstein, 6 Nav. R. 290, 296 (Nav. Sup. Ct. 1990).

§ 555. Procedure with respect to actions authorized by this subchapter

A. Any person or party desiring to institute suit against the Navajo

Nation or any officer, employee or agent of the Navajo Nation as authorized by

this Subchapter shall, as a jurisdictional condition precedent provide notice

to the President of the Navajo Nation and the Attorney General of the Navajo

Nation, as provided herein.

1. Such notices shall be sent by registered mail, addressed to the

main administrative offices of the President of the Navajo Nation and of

the Attorney General of the Navajo Nation, return receipts requested. The

time of such notice shall commence to run only from the date following

actual delivery of both notices as evidenced upon such receipts, and

filed together with such notices with the court in which such action is

subsequently to be commenced. The President of the Navajo Nation and the

Attorney General of the Navajo Nation shall, ensure the availability,

during all regular office hours, of office staff personnel duly

authorized to accept and receipt for delivery of such notices provided

herein and their receipt thereof shall not waive the assertion of any

appropriate defense pertaining to the validity of such notice or service.

2. Such notices shall state the name of each prospective plaintiff,

the identity of each prospective defendant; the nature of all claims and

relief which will be sought, and the correct address, name and telephone

number of each prospective plaintiff's attorney or counselor (if any).

3. No action shall be accepted for filing against the Navajo Nation

or any officer, employee or agent of the Navajo Nation unless the

plaintiff has filed proof of compliance with this Subsection by service

of the notices as required by this Subsection at least 30 days prior to

the date on which the complaint or any other action is proposed to be

filed with such Court.

B. In any action against the Navajo Nation or any officer, employee or

agent of the Navajo Nation, the time for responding to valid service of any

summons and complaint shall be 60 days; to valid service of any order to show

cause not less than 30 days; and to valid service of any motion, not less than

20 days. Any claim against the Navajo Nation or any public entity, officer,

employee or agent thereof, which is filed pursuant to this Act, is deemed

generally denied 60 days after valid service of the complaint, unless the

claimant or claimant's attorney or counsel filing the complaint is advised of

acceptance or of a specific or otherwise limited denial in writing or by

responsive pleading filed before the expiration of 60 days; and any such claim

shall otherwise proceed in the same manner as upon the filing of such general

denial thereof. These time periods may not be shortened by rule of court or

judicial order, but shall be extended by any longer period provided by other

applicable law, rule or order of court.

C. Any person or party filing a complaint against the Navajo Nation or

any officer, employee or agent of the Navajo Nation shall serve by registered

mail, return receipt requested, a copy of this complaint together with summons

duly issued, upon the President of the Navajo Nation and the Attorney General

of the Navajo Nation. Service of summons and complaint against any officer,

employee or agent of the Navajo Nation shall be made by any means authorized

under the rules of the courts of the Navajo Nation, provided that the time for

response thereto shall be as provided herein and service upon such parties

shall not be affected by such required service upon the President of the Navajo

Nation and the Attorney General of the Navajo Nation.

D. In any action in which any claim is asserted against the Navajo Nation

or any public entity thereof, upon written demand of the Navajo Nation

Department of Justice, made at or before the time of answering, served upon the

opposing party and filed with the court where the action is pending, the place

of trial of such action shall be changed to Window Rock, Navajo Nation

(Arizona).

History

CJY–55–85, July 25, 1985.

CMY–42–80, May 6, 1980.

Annotations

1. Notice

"Before a district court may take jurisdiction over a suit against the Navajo

Nation, a plaintiff must give notice to the Nation of his or her intended

suit." Chapo, et al. v. Navajo Nation, et al., No. SC–CV–68–00, slip op. at 5

(Nav. Sup. Ct. March 11, 2004).

" ... Appellants send a Notice of Desire to Institute Suit to the President

and Attorney General prior to filing their complaint." Chapo, et al. v. Navajo

Nation, et al., No. SC–CV–68–00, slip op. at 3 (Nav. Sup. Ct. March 11, 2004).

"We therefore hold that in cases where the Nation is sued as vicariously liable

for the conduct of its officials or employees, the Nation itself does not need

to be named." Chapo, et al. v. Navajo Nation, et al., No. SC–CV–68–00, slip

op. at 7 (Nav. Sup. Ct. March 11, 2004).

"The notice requirements of the Navajo Sovereign Immunity Act, 1 N.N.C. § 551

et seq., are jurisdictional, 1 N.N.C. § 555(A), and whether a plaintiff

complied with them is a question of law." Chapo, et al. v. Navajo Nation, et

al., No. SC–CV–68–00, slip op. at 4–5 (Nav. Sup. Ct. March 11, 2004).

"For the reasons stated, CIT was not covered by the Sovereign Immunity Act's

umbrella of 'enterprises of the Navajo Nation' in April 1995."

Blaze

Construction, Inc. v. Crownpoint Institute of Technology, 7 Nav. R. 296, 299

(Nav. Sup. Ct. 1997).

2. Enforcement of orders

"Under the plain language of the NPEA, the only restriction on enforcement of a

post-judgment order applies to enforcement against the Navajo Nation, which

must proceed under the procedural guidelines of the Navajo Sovereign Immunity

Act, 1 N.N.C. § 551 et seq." Tso v. Navajo Housing Authority, No. SC–CV–10–02,

slip op. at 7 (Nav. Sup. Ct. August 26, 2004).

3. Jurisdiction

"We believe that if the Council had intended to make Section 555(D) a

jurisdictional condition that all trials against the sovereign be heard in

Window Rock, it would have said so.

It could have used the same

'jurisdictional condition precedent' language but it did not, and we therefore

decline to extend the jurisdictional language of § 555(A) to § 555(D)." Judy

v. White, No. SC–CV–35–02, slip op. at 11–12 (Nav. Sup. Ct. August 2, 2004).

"Therefore, as a 'jurisdictional condition precedent,' 1 N.N.C. § 555(A), the

plaintiff is required to name each defendant and the claim against that

defendant." Chapo, et al. v. Navajo Nation, et al., No. SC–CV–68–00, slip op.

at 5 (Nav. Sup. Ct. March 11, 2004).

"The Ramah District Court transferred the case to the Window Rock District

Court at the request of the Navajo Nation Department of Justice, pursuant to 1

N.N.C. § 555(D)."

Chapo, et al. v. Navajo Nation, et al., No. SC–CV–68–00,

slip op. at 3 (Nav. Sup. Ct. March 11, 2004).

Formerly § 355. "As a jurisdictional condition precedent to suit against the

Navajo Nation, the plaintiff must comply with the provisions of 1 N.T.C. §

355." Plummer v. Brown II, 6 Nav. R. 88, 92 (Nav. Sup. Ct. 1989).

4. Procedures, generally

"The transfer to Window Rock pursuant to 1 N.N.C. § 555(D) may be demanded at

any time at or before the time of answering. In this case, White's identity as

a protected entity was not settled until disposition of the motions for failure

to state a claim, at which time White could have made a second demand to

transfer pursuant to § 555(D)." Judy v. White, No. SC–CV–35–02, slip op. at 14

(Nav. Sup. Ct. August 2, 2004).

"In a suit against the Navajo Nation, where a timely demand to transfer is made

by the Department of Justice pursuant to Section 555(D), the trial court is

obligated to transfer the case and the failure to do so may lead to a mandamus

action compelling transfer."

Judy v. White, No. SC–CV–35–02, slip op. at 12

(Nav. Sup. Ct. August 2, 2004).

"When the Department of Justice makes proper and timely demand for transfer,

the Court is without discretion to deny it.

The authority to request a

transfer pursuant to 1 N.N.C. § 555(D) is limited to the Department of Justice,

however, and no other party or entity, including the Court, may raise it. If

suit is brought in a district other than Window Rock, and the Department of

Justice fails to make a proper and timely request for transfer, then the trial

will remain in the initial district."

at 12 (Nav. Sup. Ct. August 2, 2004).

Judy v. White, No. SC–CV–35–02, slip op.

" ... [W]hile Loley has submitted his sum certain damages, a damages hearing

is always necessary for the Navajo Nation to defend its treasury."

Loley v.

Department of Employment and Training, 7 Nav. R. 406, 412 (Nav. Sup. Ct. 1999).

"While a Navajo Nation government agency need not file an answer to a complaint

under 1 N.N.C. § 555(B), it is not free to extend that privilege to ignore the

valid orders of the [Labor] Commission (or a court for that matter). Once the

Navajo Nation has been afforded its sovereign protection, it will be held to

the same standards and responsibilities of any litigant." Loley v. Department

of Employment and Training, 7 Nav. R. 406, 409 (Nav. Sup. Ct. 1999).

Formerly §§ 351–355.

"Whether the Act applies is not determined by who the

plaintiffs are, but by who the defendants are and in what capacity the

defendants are acting." MacDonald v. Yazzie, 6 Nav. R. 95, 96 (Nav. Sup. Ct.

1989).

5. Immunity

"We hold that private individuals, such as the Petitioners, may not raise

sovereign immunity as a defense against suits."

Owens, et al. v. Honorable

Allen Sloan, 7 Nav. R. 215, (Nav. Sup. Ct. 1996).

Chapter 7. Membership in the Navajo Nation

History

Revision note.

consistency.

Sections 501–505 were redesignated §§ 701–705 for numerical

Subchapter 1. General Provisions

§ 701. Composition

The

persons:

membership

of

the

Navajo

Nation

shall

consist

of

the

following

A. All persons of Navajo blood whose names appear on the official roll of

the Navajo Nation maintained by the Bureau of Indian Affairs.

B. Any person who is at least one-fourth degree Navajo blood, but who has

not previously been enrolled as a member of the Navajo Nation, is eligible for

membership and enrollment.

C. Children born to any enrolled member of the Navajo Nation shall

automatically become members of the Navajo Nation and shall be enrolled,

provided they are at least one-fourth degree Navajo blood.

History

CF–12–54, February 26, 1954.

CJ–50–53, July 20, 1953.

CM–36–53, May 21, 1953.

CM–12–51, May 7, 1951.

Tribal Council Resolution, January 18, 1938, 1922–1951 Res. p. 648.

Annotations

1. Construction and application

"While there is a formal process to obtain membership as a Navajo, [.... ],

that is not the only kind of 'membership' under Navajo Nation law." Means v.

The District Court of the Chinle Judicial District, 7 Nav. R. 383, 392 (Nav.

Sup. Ct. 1999).

§ 702. Adoption as not possible

A. No Navajo law or custom has ever existed or exists now, by which

anyone can ever become a Navajo, either by adoption, or otherwise, except by

birth.

B. All those individuals who claim to be a member of the Navajo Nation by

adoption are declared to be in no possible way an adopted or honorary member of

the Navajo People.

History

Tribal Council Resolution 1922–1951 Res. p. 647, March 13, 1934.

Cross References

Adoption generally, see 9 N.N.C. § 601 et seq.

§ 703. Member of another tribe

No person, otherwise eligible for membership in the Navajo Nation, may

enroll as a member of the Navajo Nation, who, at the same time, is on the roll

of any other tribe of Indians.

History

CJ–50–53, July 20, 1953.

§ 704. Authority of Government Services Committee

The Government Services

authorized and directed:

Committee

of

the

Navajo

Nation

Council

is

A. To make and promulgate all necessary rules and regulations for

establishing eligibility for membership and enrollment in the Navajo Nation;

B. To establish basic standards and requirements of proof required to

determine eligibility for membership and enrollment; and

C. To prescribe forms of application for enrollment, and establish dates

or designated periods for enrollment.

History

CJY–70–69, July 24, 1969.

CF–12–54, February 26, 1954.

Cross References

Eligibility for membership generally, see § 701 of this title.

Oversight authority

343(B)(4).

of

the

Government

Services

Committee,

see

2

N.N.C.

§

§ 705. Renunciation of membership

Any enrolled member of the Navajo Nation may renounce his membership by

written petition to the President of the Navajo Nation requesting that his name

be stricken from the Navajo Nation roll. Such person may be reinstated in the

Navajo Nation only by the vote of a majority of the Navajo Nation Council.

History

CJ–50–53, July 20, 1953.

Subchapter 3. Enrollment Procedure

History

Revision note.

consistency.

Sections 551–560 were redesignated §§ 751–760 for numerical

Code of Federal Regulations

Enrollment appeals, see 25 CFR § 62.1 et seq.

Preparation of rolls of Indians, see 25 CFR § 61.1 et seq.

§ 751. Application for enrollment

Anyone wishing to apply for enrollment in the Navajo Nation may submit an

application pursuant to 1 N.N.C. § 760. Such application must be verified

before a notary public.

History

ACS–39–55, September 7, 1955.

Annotations

1. Construction and application

"We find that the petitioner, by reason of his marriage to a Navajo, longtime

residence within the Navajo Nation, his activities here, and his status as a

hadane, consented to Navajo Nation criminal jurisdiction. This is not done by

'adoption' in any formal or customary sense, but by assuming tribal relations

and establishing familial and community relationships under Navajo common law."

Means v. The District Court of the Chinle Judicial District, 7 Nav. R. 383, 393

(Nav. Sup. Ct. 1999).

"While there is a formal process to obtain membership as a Navajo, [.... ],

that is not the only kind of 'membership' under Navajo Nation law." Means v.

The District Court of the Chinle Judicial District, 7 Nav. R. 383, 392 (Nav.

Sup. Ct. 1999).

§ 752. Enrollment Screening Committee;

action by Government Services Committee

A. An Enrollment Screening Committee consisting of the Navajo Nation

President, the Vice-President, the Executive Director of the Division of

Natural Resources, the Agency Census Clerk, and the Attorney General is

established. The Enrollment Screening Committee shall consider all applications

for enrollment in the first instance.

B. In all cases where the records of the Navajo Agency do not show that

the applicant is of at least one-fourth degree Navajo blood or the applicant

does not establish such fact by documentary evidence independent of his own

statement, consisting of the affidavits of disinterested persons, certified

copies of public or church records, or the like, the Screening Committee shall

reject the application. In all cases where the applicant appears to be enrolled

in another Indian tribe, the Screening Committee shall reject the application.

In all cases the Screening Committee or any successor committee lawfully

established shall inform the applicant of his or her rights of appeal under

this Section. The Committee or its successor shall establish a record of any

hearing or proceeding on any application, and this record shall contain the

evidence used by the Committee in making its decision, a statement of its

decision, and its reasons therefore, and the date.

C. The Committee or its successor shall transmit this record established

under Subsection (B) to an appropriate District Court of the Navajo Nation and

a copy to the Office of the Prosecutor.

History

CJY–70–69, July 24, 1969.

ACS–39–55, September 7, 1955.

Revision note. The "Attorney General" was substituted for "Legal Advisor". See

2 N.N.C. § 1961 (B).

"Executive Director of the Division of Natural Resources" was substituted for

"Director of Land Investigations" in light of 2 N.N.C. § 1901 et seq.

Subsection (B) slightly reworded for statutory clarity.

Annotations

1. Construction and application

"We find that the petitioner, by reason of his marriage to a Navajo, longtime

residence within the Navajo Nation, his activities here, and his status as a

hadane, consented to Navajo Nation criminal jurisdiction. This is not done by

'adoption' in any formal or customary sense, but by assuming tribal relations

and establishing familial and community relationships under Navajo common law."

Means v. The District Court of the Chinle Judicial District, 7 Nav. R. 383, 393

(Nav. Sup. Ct. 1999).

"While there is a formal process to obtain membership as a Navajo, [.... ],

that is not the only kind of 'membership' under Navajo Nation law." Means v.

The District Court of the Chinle Judicial District, 7 Nav. R. 383, 392 (Nav.

Sup. Ct. 1999).

§ 753. Standards for Screening Committee recommendations

The Screening Committee shall be guided by the following standards in

making its recommendations:

A. If the applicant appears to be a Navajo Indian of full blood it shall

recommend approval.

B. If the applicant appears to have Navajo blood of one-fourth degree or

higher, but not full blood, it shall base its recommendations on his degree of

Navajo blood, how long he has lived among the Navajo People, whether he is

presently living among them, whether he can be identified as a member of a

Navajo clan, whether he can speak the Navajo language, and whether he is

married to an enrolled Navajo. The Screening Committee is authorized to make

investigations to determine such facts, but the burden of proof in all cases

shall rest on the applicants.

History

ACS–39–55, September 7, 1955.

Annotations

1. Construction and application

"We find that the petitioner, by reason of his marriage to a Navajo, longtime

residence within the Navajo Nation, his activities here, and his status as a

hadane, consented to Navajo Nation criminal jurisdiction. This is not done by

'adoption' in any formal or customary sense, but by assuming tribal relations

and establishing familial and community relationships under Navajo common law."

Means v. The District Court of the Chinle Judicial District, 7 Nav. R. 383, 393

(Nav. Sup. Ct. 1999).

"While there is a formal process to obtain membership as a Navajo, [....

],

that is not the only kind of 'membership' under Navajo Nation law." Means v.

The District Court of the Chinle Judicial District, 7 Nav. R. 383, 392 (Nav.

Sup. Ct. 1999).

§ 754. Appeals from Screening Committee–District Courts

The District Courts of the Navajo Nation shall have original jurisdiction

to hear and decide appeals from decisions of the Enrollment Screening Committee

or any successor committee lawfully established by the Government Services

Committee of the Navajo Nation Council pursuant to 1 N.N.C. § 704.

History

CJY–70–69, July 24, 1969.

ACS–39–55, September 7, 1955.

CF–12–54, February 12, 1954.

CJ–50–53, July 20, 1953.

Revision note.

"Trial Courts" changed to "District Courts".

Transfer of pending cases. CJY–70–69, § 2F, provided that all cases presently

pending before the Advisory Committee of the Navajo Nation shall be transferred

to the Navajo Nation Courts.

Annotations

1. Construction and application

"We find that the petitioner, by reason of his marriage to a Navajo, longtime

residence within the Navajo Nation, his activities here, and his status as a

hadane, consented to Navajo Nation criminal jurisdiction. This is not done by

'adoption' in any formal or customary sense, but by assuming tribal relations

and establishing familial and community relationships under Navajo common law."

Means v. The District Court of the Chinle Judicial District, 7 Nav. R. 383, 393

(Nav. Sup. Ct. 1999).

"While there is a formal process to obtain membership as a Navajo, [.... ],

that is not the only kind of 'membership' under Navajo Nation law." Means v.

The District Court of the Chinle Judicial District, 7 Nav. R. 383, 392 (Nav.

Sup. Ct. 1999).

§ 755. Navajo Nation Supreme Court

The Supreme Court of the Navajo Nation shall have jurisdiction to hear

appeals from any judgment of the District Court of the Navajo Nation in any

case involving an application for enrollment and membership in the Navajo

Nation, and the decision of the Supreme Court in any such appeal shall be final

and binding upon the parties.

History

CJY–70–69, July 24, 1969.

Revision note.

"Appeals Court" changed to "Navajo Nation Supreme Court".

"Trial Court" changed to "District Court".

§ 756. Application of rules and regulations

The District Courts, and the Supreme Court of the Navajo Nation shall

consider, apply, and be bound by any rules or regulations governing eligibility

for membership, and other aspects of applications for enrollment in the Navajo

Nation, established by the Navajo Nation Council or by the Government Services

Committee of the Navajo Nation Council, pursuant to authorization by the Navajo

Nation Council.

History

CJY–70–69, § 2C, July 24, 1969.

Revision note.

"Appeals Court" changed to "Navajo Nation Supreme Court".

"Trial Courts" changed to "District Courts".

Annotations

1. Construction and application

"We find that the petitioner, by reason of his marriage to a Navajo, longtime

residence within the Navajo Nation, his activities here, and his status as a

hadane, consented to Navajo Nation criminal jurisdiction. This is not done by

'adoption' in any formal or customary sense, but by assuming tribal relations

and establishing familial and community relationships under Navajo common law."

Means v. The District Court of the Chinle Judicial District, 7 Nav. R. 383, 393

(Nav. Sup. Ct. 1999).

"While there is a formal process to obtain membership as a Navajo, [.... ],

that is not the only kind of 'membership' under Navajo Nation law." Means v.

The District Court of the Chinle Judicial District, 7 Nav. R. 383, 392 (Nav.

Sup. Ct. 1999).

§ 757. Appeals

The Navajo Nation, through the Navajo Nation Prosecutor, or the applicant

may appeal any decision of the Screening Committee or its lawful successor, or

District Court of the Navajo Nation authorized to hear and determine cases of

applications for enrollment, within the time provided by law for appeals from

judgments of the District Courts of the Navajo Nation. The decision of the

Screening Committee or its lawful successor, or the decision of any District

Court of the Navajo Nation in any case of an application for enrollment shall

be final and binding upon the parties, if no appeal is taken within the time

prescribed.

History

CJY–70–69, July 24, 1969.

Revision note.

"Trial Court" changed to "District Court".

Annotations

1. Construction and application

"We find that the petitioner, by reason of his marriage to a Navajo, longtime

residence within the Navajo Nation, his activities here, and his status as a

hadane, consented to Navajo Nation criminal jurisdiction. This is not done by

'adoption' in any formal or customary sense, but by assuming tribal relations

and establishing familial and community relationships under Navajo common law."

Means v. The District Court of the Chinle Judicial District, 7 Nav. R. 383, 393

(Nav. Sup. Ct. 1999).

"While there is a formal process to obtain membership as a Navajo, [.... ],

that is not the only kind of 'membership' under Navajo Nation law." Means v.

The District Court of the Chinle Judicial District, 7 Nav. R. 383, 392 (Nav.

Sup. Ct. 1999).

§ 758. Order directing enrollment of applicant

The District Courts of the Navajo Nation shall enter an order directing

the appropriate official of the Navajo Nation to enroll as a member of the

Navajo Nation any applicant, if any judgment of the Screening Committee or its

lawful successor, or of a District Court of the Navajo Nation, upholding the

application for enrollment becomes final and binding pursuant to 1 N.N.C. §

757. The Supreme Court of the Navajo Nation shall enter an order directing the

appropriate official or employee of the Navajo Nation to enroll as a member of

the Navajo Nation any applicant whose application is upheld by the Supreme

Court of the Navajo Nation.

History

CJY–70–69, July 24, 1969.

Revision note.

"Trial Courts" changed to "District Courts". "Appeals Court"

changed to "Supreme Court".

§ 759. Effectiveness of provisions

Applications for enrolling in the Navajo Nation may be acted upon from

September 7, 1955, until further notice.

History

ACS–39–55, September 7, 1955.

§ 760. Form of application [Deleted]

History

See ACS–39–55, Exhibit A, September 7, 1955, regarding

current form may be obtained from Navajo Census Office.

application

form;

Revision note.

See 1 N.N.C. § 704(C).

Title 2

Navajo Nation Government

Chapter 1. Establishment

Subchapter 1. Generally

§ 1. Navajo Nation government establishment

There is hereby established the Navajo Nation government consisting of

the Legislative, Executive and Judicial Branches, and political subdivisions of

which are not under any branch of the Central government.

History

CD–68–89, December 15, 1989.

respectively.

See 2 N.N.C. §§ 101, 1001 and 7 N.N.C. § 201,

§ 2. Location of Navajo Nation Capitol

The capitol of the Navajo Nation shall be located at Window Rock, Navajo

Nation (Arizona).

History

CD–68–89, December 15, 1989.

Language slightly amended.

Tribal Council Res. 1922–1951, Res. p. 371, October 14, 1949.

§ 3. Oath of office

The President, Vice-President and all delegates to the Navajo Nation

Council, before assuming their official duties, shall take an oath of office.

History

CD–68–89, December 15, 1989.

Cross References

Navajo Nation Election Code, see 11 N.N.C. § 6.

§ 4. [Deleted]

History

Deleted by CD–68–89;

December 15, 1989.

CJN–60–71, June 8, 1971; an organizational structure for the Navajo Nation was

adopted. Justifications in the 1972 budget for all departments, programs, etc.,

were approved and adopted as plans of operation.

Each year thereafter the

appropriate budget year reference was substituted until CS–28–83, September 28,

1983 substituted references of 1984 for 1983.

The approval of plans of

operation and organizational structure rested with the Advisory Committee.

By CD–68–89, December 15, 1989, the Government Services Committee succeeded the

Advisory Committee.

Authorization for various programs is found throughout

this title. Plans of Operation are no longer codified.

Cross References

Approval

of

plans

of

operation

for

Legislative

Branch

programs,

Intergovernmental Relations Committee, authority, see 2 N.N.C. § 824(B)(1).

Programs in the Executive Branch, authority of the Government

Committee for plans of operation, see 2 N.N.C. § 343(B)(2).

Services

Subchapter 2. Property Control

§ 51. Purpose

This policy sets forth, in general terms, the authority, principles, and

policies governing the accounting for Navajo Nation property in terms of both

dollar value and units, and prescribes staff responsibilities for their

execution and supervision.

This policy also provides the basis for the

implementation of and general supervision over procedures necessary to put such

principles and policies into practice;

insures physical integrity and

responsible use of all Navajo Nation assets through the maintenance of records,

performance of inventories and implementation of disposal procedures;

and

insures the provision of adequate and economical warehousing, receipt and

delivery of the Navajo Nation's property.

History

ACJY–84–84, July 10, 1984.

§ 52. Statutory provisions

The Navajo Nation Council may prescribe regulations for the accounting of

Navajo Nation property and the fixing of responsibility for that property.

Under regulations prescribed by the Navajo Nation Council, records of real

property, personal property and supplies of the Navajo Nation will be

maintained on both a quantitative and monetary basis, so far as practicable.

History

ACJY–84–84, July 10, 1984.

§ 53. Scope

A. The general principles of this regulation are applicable to all

components of the Navajo Nation wherever located, including the Navajo Nation's

property in programs operating under the regulation of federal, state or other

contractual arrangements.

B. The general principles of this policy are applicable to programs

operating under one or more elements of the financial management plans and

procedures of the Navajo Nation.

C. Activities operating under federal grant or contract funds shall apply

the general principles of this regulation and observe the Code of Federal

Regulations (CFR), Title 41, Public Contracts and Property Management, Subtitle

C, Federal Property Management Regulations System.

History

ACJY–84–84, July 10, 1984.

§ 54. Explanation of terms

The following terms are pertinent to this regulation and to all other

regulations dealing with property accounting:

A. Accountability involves the basic obligation of accounting for

property, whereas responsibility arises from possession of property and/or the

obligation of supervision of others who are in possession of property. Either

or both of these concepts may be attached to one individual. Accountability is

assigned at the department head level, or equivalent, or higher.

In the

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