# 0010 Titles 1 to 5 (2010)

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/tribal%3Anavajo_nation%3A456572d651d7cf52

## Record

- **Collection:** Tribal code
- **Document type:** Tribal code

## Text

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 determi

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Anavajo_nation%3A456572d651d7cf52. Public record. Not legal advice.