Navajo Common LawNavajo Common LawBased on book: Navajo Courts and Navajo Based on book: Navajo Courts and Navajo

Common Law, A Tradition of Tribal Self-Common Law, A Tradition of Tribal Self-Governance (Univ. of Minnesota Press, 2009)Governance (Univ. of Minnesota Press, 2009)

ByByJustice Raymond D. Austin (ret.)Justice Raymond D. Austin (ret.)

NNBA Annual ConferenceNNBA Annual ConferenceJune 10-11, 2010June 10-11, 2010

I. Why use Navajo customary law (besides deciding I. Why use Navajo customary law (besides deciding legal issueslegal issues)?)?

Navajo customary law:Navajo customary law:

1. gives Navajo Nation its unique identity among nations of the 1. gives Navajo Nation its unique identity among nations of the worldworld

2. is Navajo Nation’s links to its past and future and to all 2. is Navajo Nation’s links to its past and future and to all relatives in creationrelatives in creation

3. fosters Navajo nation-building and Navajo sovereignty3. fosters Navajo nation-building and Navajo sovereignty

4. means “doing sovereignty” the Navajo way4. means “doing sovereignty” the Navajo way

5. forces Navajos to “think like Din5. forces Navajos to “think like Diné”; like ancestorsé”; like ancestors

6. ensures preservation and transmission of culture, language, 6. ensures preservation and transmission of culture, language, spirituality and identity across generationsspirituality and identity across generations

7. conforms with United Nations Declarations on the Rights of 7. conforms with United Nations Declarations on the Rights of Indigenous Peoples (adopted Sept. 13, 2007) – rights to Indigenous Peoples (adopted Sept. 13, 2007) – rights to political status, self-determination, self-government, political status, self-determination, self-government, identity, culture, language, spirituality, distinct political, identity, culture, language, spirituality, distinct political, legal, economic social and cultural institutions, etc.legal, economic social and cultural institutions, etc.

II. What is “DinII. What is “Diné bibee haz’aanii”é bibee haz’aanii”??

1. Modern description: statutes, administrative regulations, 1. Modern description: statutes, administrative regulations, court-made law & Navajo common law (values, norms, court-made law & Navajo common law (values, norms, customs & traditions)customs & traditions)

2. Traditional description:2. Traditional description:

a. broad meaning – those codified as “the fundamental laws a. broad meaning – those codified as “the fundamental laws of the Diné (i.e., traditional law; customary law; natural law; of the Diné (i.e., traditional law; customary law; natural law; common law) common law) terminology may cause confusion terminology may cause confusion

b. customary law – values, norms, customs, & traditions b. customary law – values, norms, customs, & traditions that are transmitted orally across generations and which that are transmitted orally across generations and which produce and maintain right relations, right relationships, produce and maintain right relations, right relationships, and desirable outcomes in Navajo societyand desirable outcomes in Navajo society

3. Core description: bee haz’aanii literally translated 3. Core description: bee haz’aanii literally translated “by it “by it which a certain state/condition exists”which a certain state/condition exists”

a. “it” refers to norms, customs etc. that produce or a. “it” refers to norms, customs etc. that produce or maintain that maintain that statestate

b. “state/condition” refers to hozho, k’e or k’eib. “state/condition” refers to hozho, k’e or k’ei

III. DinIII. Dinéé problem-solving models problem-solving models

A. General model:A. General model:

Hozho (harmony) Hozho (harmony) Hochxo (disharmony) Hochxo (disharmony) Hozho (harmony) Hozho (harmony)

B. Ceremony model:B. Ceremony model:

Hozho (harmony) Hozho (harmony) Hochzo (disharmony Hochzo (disharmony corrected by corrected by ceremony) ceremony) Hozho (harmony restored) Hozho (harmony restored)

C. Navajo jurisprudence model:C. Navajo jurisprudence model:

Hozho (harmony) Hozho (harmony) Anahoti’ (problem/issue Anahoti’ (problem/issue caused by caused by Nayee [disrupter]) Nayee [disrupter]) Navajo common law applied w/in Navajo common law applied w/in context of the three foundational doctrines (hozho, k’e, k’ei) context of the three foundational doctrines (hozho, k’e, k’ei) Hozho (harmony/relationships restored) Hozho (harmony/relationships restored)

IV. Choice of law, 7 NNC IV. Choice of law, 7 NNC §§ 204(A) 204(A)

Order of preference:Order of preference:

1. statutes and regulations1. statutes and regulations

a. use customary laws to guide interpretation of statutes & a. use customary laws to guide interpretation of statutes & regulationsregulations

2. customary laws in absence of statutes & regulations (e.g., 2. customary laws in absence of statutes & regulations (e.g., probate, customary land-usage)probate, customary land-usage)

3. federal laws or regulations when applicable (note: fed case-3. federal laws or regulations when applicable (note: fed case-law might be first preference to determine jurisdiction – law might be first preference to determine jurisdiction – MontanaMontana analysis) analysis)

4. laws of state where dispute arose (Az, NM, Utah) (note: 4. laws of state where dispute arose (Az, NM, Utah) (note: might lead to different rulings though facts similar)might lead to different rulings though facts similar)

**See **See Estate of BeloneEstate of Belone, 5 Nav. R. 161 (Nav. Sup. Ct. 1987), for , 5 Nav. R. 161 (Nav. Sup. Ct. 1987), for procedures on incorporating customary law into litigation; procedures on incorporating customary law into litigation; People knowledgeable (tribal encyclopedia) on customs People knowledgeable (tribal encyclopedia) on customs can aid court on customary law questionscan aid court on customary law questions

V. Fundamental Laws, 1 NNN V. Fundamental Laws, 1 NNN §§§§ 201-206 201-206

1. What are fundamental laws of Din1. What are fundamental laws of Diné? é? Immutable lawsImmutable laws given by given by Diyin (Creator), Diyin Diné (Holy Beings), and Diyin (Creator), Diyin Diné (Holy Beings), and Nahasdzaa/Yadilhil (Mother Earth & Father Universe) to Nahasdzaa/Yadilhil (Mother Earth & Father Universe) to Navajo people and Navajo common lawNavajo people and Navajo common law

2. Reasons for codification:2. Reasons for codification:

a. recognize/acknowledge FLs exist; FLs protect Diné & Diné a. recognize/acknowledge FLs exist; FLs protect Diné & Diné Life Life WayWay

b. FLs impose duties on leaders to protect, preserve, enhance b. FLs impose duties on leaders to protect, preserve, enhance DLW DLW and Diné sovereigntyand Diné sovereignty

c. generate interest among Diné to learn FLsc. generate interest among Diné to learn FLs

3. Council findings (FLs codified are summarized):3. Council findings (FLs codified are summarized):

a. FLs do not violate religious freedomsa. FLs do not violate religious freedoms

b. Gov’t can observe FLs in public functions and public b. Gov’t can observe FLs in public functions and public buildingsbuildings

c. NN leaders must learn, use and educate on FLsc. NN leaders must learn, use and educate on FLs

d. FLs are to be used to interpret statutesd. FLs are to be used to interpret statutes

VI. Three foundational doctrines (in FLs)VI. Three foundational doctrines (in FLs)

1. Hozho – condition where everything is in its proper place and 1. Hozho – condition where everything is in its proper place and functioning in harmonious relationship to [“and with”] functioning in harmonious relationship to [“and with”] everything else. G. Witherspoon, Navajo Kinship & Marriage. everything else. G. Witherspoon, Navajo Kinship & Marriage. Glossed as harmony, balance, peace. Hozho is essential to Glossed as harmony, balance, peace. Hozho is essential to DinDiné Life Way.é Life Way.

2. K’e – glossed as group solidarity through positive values. 2. K’e – glossed as group solidarity through positive values. Values, including love, kindness, peacefulness, friendliness, Values, including love, kindness, peacefulness, friendliness, cooperation etc., that help maintain kinship network and right cooperation etc., that help maintain kinship network and right relationships among people. Serves as “glue” that maintains relationships among people. Serves as “glue” that maintains interconnectedness, interdependence, and universal interconnectedness, interdependence, and universal relationships.relationships.

a. examples of k’e in Navajo society: people cooperating on a a. examples of k’e in Navajo society: people cooperating on a major ceremony that may take several days; people major ceremony that may take several days; people addressing each other by kinship terms, esp. during addressing each other by kinship terms, esp. during peacemaking session.peacemaking session.

3. K’ei – clan system; identifies relatives through 1) 4 basic clans, 3. K’ei – clan system; identifies relatives through 1) 4 basic clans, and 2) through related clans (e.g., clan A related to clan X and 2) through related clans (e.g., clan A related to clan X because they split from clan W); regulates domestic relationsbecause they split from clan W); regulates domestic relations

VII. ApplicationVII. Application

Apache v. Republic Life Ins. Co.Apache v. Republic Life Ins. Co., 3 Nav. R. 250 (W. Rock D. Ct. , 3 Nav. R. 250 (W. Rock D. Ct. 1982): H named W as beneficiary on his life insurance policy. W 1982): H named W as beneficiary on his life insurance policy. W gets default divorce w/o claiming interest in policy. H dies after gets default divorce w/o claiming interest in policy. H dies after divorce w/o changing beneficiary designation. H’s mother claims divorce w/o changing beneficiary designation. H’s mother claims policy proceeds. policy proceeds. IssueIssue: Who gets insurance $$?: Who gets insurance $$?

MotherMother: Use Navajo common law - divorce cuts all rights of former : Use Navajo common law - divorce cuts all rights of former spouses to each other’s property; I should get insurance $$spouses to each other’s property; I should get insurance $$

Ex-wifeEx-wife: Use Az contract law – Insurance policy is contract which : Use Az contract law – Insurance policy is contract which must be enforced as written; I get $$ as named beneficiarymust be enforced as written; I get $$ as named beneficiary

1. NCL v. State law: Ct uses choice of law statute – no statutory law 1. NCL v. State law: Ct uses choice of law statute – no statutory law but NCL available; Ct takes judicial notice of NCLbut NCL available; Ct takes judicial notice of NCL

2. Ct relies on k’ei doctrine: matrilocal residence upon marriage; 2. Ct relies on k’ei doctrine: matrilocal residence upon marriage; upon divorce, W has choice over marital property (W can keep all; upon divorce, W has choice over marital property (W can keep all; or divide according to her preference). Why? Navajos matrilinealor divide according to her preference). Why? Navajos matrilineal

3. Finality doctrine: divorce cuts all ties of couple; purpose of 3. Finality doctrine: divorce cuts all ties of couple; purpose of doctrine - restore parties/families to hozhodoctrine - restore parties/families to hozho

4. W did not claim policy so she left it behind – mother gets the $$ 4. W did not claim policy so she left it behind – mother gets the $$

AhAhééhee’!!hee’!!