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navajo_nation/11636697.json

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+"{\"id\": \"11636697\", \"name\": \"Lee and Pearl AUSTIN, Appellants. vs. Margaret A. BEGAY, Appellee\", \"name_abbreviation\": \"Austin v. Begay\", \"decision_date\": \"1980-04-15\", \"docket_number\": \"No. A-CV-01-80\", \"first_page\": 14, \"last_page\": 14, \"citations\": \"3 Navajo Rptr. 14\", \"volume\": \"3\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Court of Appeals\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T22:54:12.751217+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Lee and Pearl AUSTIN, Appellants. vs. Margaret A. BEGAY, Appellee.\", \"head_matter\": \"No. A-CV-01-80\\nCOURT OF APPEALS OF THE NAVAJO NATION\\nApril 15, 1980\\nLee and Pearl AUSTIN, Appellants. vs. Margaret A. BEGAY, Appellee.\\nAndy G. Smith, Esq., Chinle, Navajo Nation (Arizona) for Appellee and Richard George, Esq., Tuba City, Navajo Nation (Arizona) for Appellants\", \"word_count\": \"121\", \"char_count\": \"736\", \"text\": \"ORDER OF DISMISSAL\\nThe appeal in the above entitled matter, filed the 28th day of January, 1980, having been received and considered by the (Acting) Chief Justice pursuant to 7 N.T.C. \\u00a7801, the Court finds that no proof of service by personal service or by certified mail as required by Rule 6(a) of the Rules of Appellate Procedure was certified upon the documents filed with the Court of Appeals.\\nThe above captioned matter is, therefore, HEREBY DISMISSED.\"}"

navajo_nation/11637415.json

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+"{\"id\": \"11637415\", \"name\": \"In Re: Admission to Practice Before The Courts of the Navajo Nation\", \"name_abbreviation\": \"In re Admission to Practice Before the Courts of the Navajo Nation\", \"decision_date\": \"1980-11-26\", \"docket_number\": \"No. A-CV-29-80\", \"first_page\": 34, \"last_page\": 34, \"citations\": \"3 Navajo Rptr. 34\", \"volume\": \"3\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Court of Appeals\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T22:54:12.751217+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In Re: Admission to Practice Before The Courts of the Navajo Nation\", \"head_matter\": \"No. A-CV-29-80\\nCOURT OF APPEALS OF THE NAVAJO NATION\\nNovember 26, 1980\\nIn Re: Admission to Practice Before The Courts of the Navajo Nation\\nTom Tso, Esq., Chairman of the Navajo Bar Admission Committee, Window Rock, Arizona, for Applicants.\", \"word_count\": \"238\", \"char_count\": \"1458\", \"text\": \"ORDER\\nReview of Motion by\\nNelson J. McCABE, Chief Justice.\\nOrder entered.\\nThe above-entitled matter having come before the Honorable Court this date on a Petition for Admission to practice law before the Courts of the Navajo Nation, filed by Tom Tso, Chairman, Bar Admissions Committee, Navajo Nation Bar Association, on behalf of the twenty applicants who have successfully passed the appropriate bar examinaton and are qualified to practice law before the Courts of the Navajo Nation; the Court otherwise being fully informed in the premises thereof finds that said petition ought be granted.\\nTHEREFORE, IT IS HEREBY ORDERED that the Petition for Admission to Practice before the Courts of the Navajo Nation, filed in this cause be and is granted.\\nIT IS FURTHER ORDERED that the following persons be and are hereby admitted to practice law before the Courts of the Navajo Nation:\\nGeorge J. ADSON, JR.\\nBruce B. BALTAR\\nDavid W. BARROW\\nIrene Feigenoff BARROW\\nMark Glenton BEDEL\\nJ. Tonny BOWMAN\\nVirginia BYRNES Miki DEERWATER\\nSteven A. HARVEY\\nCynthia H. HELLER\\nDave JACKSON\\nSteven LeCUYER\\nJuanita LUMPMOUTH\\nMary Lynne NEWELL\\nJane T. NEZ\\nG. Irene Crawford ROACH\\nAngela SANFORD\\nNona Lou SMITH\\nGuy C. THOMAS\\nCasey WATCHMAN\"}"

navajo_nation/11637605.json

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+"{\"id\": \"11637605\", \"name\": \"Leonard WATCHMAN, Appellant, vs. Peter MacDONALD, et al., Respondents\", \"name_abbreviation\": \"Watchman v. MacDonald\", \"decision_date\": \"1981-02-26\", \"docket_number\": \"No. A-CV-09-80\", \"first_page\": 46, \"last_page\": 46, \"citations\": \"3 Navajo Rptr. 46\", \"volume\": \"3\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Court of Appeals\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T22:54:12.751217+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Leonard WATCHMAN, Appellant, vs. Peter MacDONALD, et al., Respondents.\", \"head_matter\": \"No. A-CV-09-80\\nCOURT OF APPEALS OF THE NAVAJO NATION\\nFebruary 26, 1981\\nLeonard WATCHMAN, Appellant, vs. Peter MacDONALD, et al., Respondents.\\nLeonard Watchman, Esq., Prosecutor, Window Rock, Navajo Nation (Arizona), for Appellant and Michael V. Stuff, Esq., Flagstaff, Arizona, for Appellee.\", \"word_count\": \"192\", \"char_count\": \"1160\", \"text\": \"ORDER OF DISMISSAL\\nRule (2c) of the Navajo Rules of Appellate Procedure requires that an appeal must be filed within thirty (30) days of the final judgment.\\nThe final order of dismissal of the entitled matter was entered on March 5, 1980.\\nThe appeal on the entitled matter was filed in the Court of Appeals of the Navajo Nation on April 7, 1980.\\nThe appeal record does not contain proof of personal service or mail service as requird by Rule 6(a) of the Rules of Appellate Procedure .\\nThe appeal record and the District Court records do not show that the appellant ever complied with Rule 5(d) of the Rules of Appellate Procedure.\\nThe appeal was filed thirty-three (33) days after the final order of the District Court and due to non-compliance with appellate procedure, the appeal shall be dismissed.\\nTHEREFORE, the appeal in the entitled matter is hereby DISMISSED.\"}"

navajo_nation/11637761.json

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+"{\"id\": \"11637761\", \"name\": \"Richard CHISCHILLY, Appellant, vs. Thomas O. and Lenora W. LINCOLN, Appellees\", \"name_abbreviation\": \"Chischilly v. Lincoln\", \"decision_date\": \"1981-04-22\", \"docket_number\": \"No. A-CV-17-80\", \"first_page\": 50, \"last_page\": 50, \"citations\": \"3 Navajo Rptr. 50\", \"volume\": \"3\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Court of Appeals\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T22:54:12.751217+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Richard CHISCHILLY, Appellant, vs. Thomas O. and Lenora W. LINCOLN, Appellees.\", \"head_matter\": \"No. A-CV-17-80\\nCOURT OF APPEALS OF THE NAVAJO NATION\\nApril 22, 1981\\nRichard CHISCHILLY, Appellant, vs. Thomas O. and Lenora W. LINCOLN, Appellees.\\nGenevieve Chato, Esq., Window Rock, Navajo Nation (Arizona) for appellant.\", \"word_count\": \"99\", \"char_count\": \"616\", \"text\": \"ORDER DISMISSING APPEAL\\nOn December 22, 1980, Richard Chischilly, the Defendant-Appellant, filed his withdrawal of appeal in this case, indicating the matter which was appealed had been resolved by action of the District Court. Since there is now no further action to be taken by the Court of Appeals, the appeal filed July 3, 1980 is dismissed and the judgment of the District Court is final.\"}"

navajo_nation/11637946.json

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+"{\"id\": \"11637946\", \"name\": \"James Woodrow CURTIS, Petitioner, vs. NAVAJO NATION BAR ASSOCIATION ADMISSION COMMITTEE; its members; chairman; agents; assigns; proctors; and monitors, Respondents\", \"name_abbreviation\": \"Curtis v. Navajo Nation Bar Ass'n Admission Committee\", \"decision_date\": \"1981-08-14\", \"docket_number\": \"No. A-CV-08-81\", \"first_page\": 53, \"last_page\": 53, \"citations\": \"3 Navajo Rptr. 53\", \"volume\": \"3\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Court of Appeals\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T22:54:12.751217+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"James Woodrow CURTIS, Petitioner, vs. NAVAJO NATION BAR ASSOCIATION ADMISSION COMMITTEE; its members; chairman; agents; assigns; proctors; and monitors, Respondents.\", \"head_matter\": \"No. A-CV-08-81\\nAugust 14, 1981\\nCOURT OF APPEALS OF THE NAVAJO NATION\\nJames Woodrow CURTIS, Petitioner, vs. NAVAJO NATION BAR ASSOCIATION ADMISSION COMMITTEE; its members; chairman; agents; assigns; proctors; and monitors, Respondents.\", \"word_count\": \"172\", \"char_count\": \"1062\", \"text\": \"ORDER\\nOrder by the\\nAssociate Justice Homer Bluehouse.\\nThe Honorable Chief Justice Nelson J. McCabe has disqualified himself from acting upon the petition for a writ of mandamus and has appointed the undersigned Associate Justice to make any necessary orders in this matter. The petition was filed upon February 27, 1981 and it appears that James Woodrow Curtis has actually taken the examination for admission to the Bar of the Navajo Nation. That being the case there is no need for this Court to take action on the petition or comment further on its merits or legal sufficiency.\\nThe Court takes no position as to the apparent dispute between Mr. Curtis and the Navajo Nation Bar Association Admissions Committee because that dispute is being taken care of before the committee and the Court will defer to it for the present.\"}"

navajo_nation/11638678.json

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+"{\"id\": \"11638678\", \"name\": \"Tom and Dorothy SHIRLEY, Appellants, vs. Hazel JAMES, Appellee\", \"name_abbreviation\": \"Shirley v. James\", \"decision_date\": \"1982-05-27\", \"docket_number\": \"No. A-CV-39-81\", \"first_page\": 83, \"last_page\": 83, \"citations\": \"3 Navajo Rptr. 83\", \"volume\": \"3\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Court of Appeals\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T22:54:12.751217+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Tom and Dorothy SHIRLEY, Appellants, vs. Hazel JAMES, Appellee.\", \"head_matter\": \"No. A-CV-39-81\\nCOURT OF APPEALS OF THE NAVAJO NATION\\nMay 27, 1982\\nTom and Dorothy SHIRLEY, Appellants, vs. Hazel JAMES, Appellee.\\nLeonard Watchman, Esq., Window Rock, Navajo Nation (Arizona) for appellant and Albert Hale, Esq., Window Rock, Navajo Nation (Arizona) for appellee.\", \"word_count\": \"298\", \"char_count\": \"1754\", \"text\": \"ORDER DENYING APPEAL\\nThe appellant-defendants filed their notice of appeal on July 9, 1981 asking the Court to decide certain questions of law. A review of this case shows there are,three issues, largely hinging on findings of fact.\\nUnder 7 NTC Sec. 801, the Chief Justice has the authority to review the reasons stated in a request for permission to appeal and permit an appeal if those reasons show probable cause for review. This means that if the reasons stated do not demonstrate probable cause to believe there has been an error in the trial court's decision, an appeal may be denied.\\nA review of this file shows no basis for impeaching the findings of fact of the District Court, and this court will not overturn the findings of a trial court unless they are clearly erroneous. In addition, there is no showing the District Court was incorrect with regard to its findings of law. The long period of occupation and land use by the plaintiff's father was found as a finding of fact, and the finding of a \\\"customary adverse possession,\\\" if you will, was reasonable. The record before this court does not disclose any attempt on the part of the defendants to obtain a legal determination of the plaintiff's father's land use during the period he exercised it, and the factual and legal findings of the trial judge are not convincingly demonstrated to be in error.\\nThe appellee's request for attorney's fees for a frivolous appeal are denied.\\nThis appeal is hereby DENIED.\"}"

navajo_nation/11639321.json

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+"{\"id\": \"11639321\", \"name\": \"William COLLINS, III, Appellant. vs. Dr. John BEGAY and Mary Ann TYLER, Appellee\", \"name_abbreviation\": \"Collins v. Begay\", \"decision_date\": \"1982-09-14\", \"docket_number\": \"No. A-CV-10-80\", \"first_page\": 137, \"last_page\": 137, \"citations\": \"3 Navajo Rptr. 137\", \"volume\": \"3\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Court of Appeals\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T22:54:12.751217+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William COLLINS, III, Appellant. vs. Dr. John BEGAY and Mary Ann TYLER, Appellee.\", \"head_matter\": \"No. A-CV-10-80\\nCOURT OF APPEALS OF THE NAVAJO NATION\\nSeptember 14, 1982\\nWilliam COLLINS, III, Appellant. vs. Dr. John BEGAY and Mary Ann TYLER, Appellee.\\nLawrence Long, Esq., DNA-People's Legal Service, Window Rock, Navajo Nation (Arizona) for Appellant and Donald Benally, Esq., Shiprock, Navajo Nation (New Mexico), for Appellee.\", \"word_count\": \"264\", \"char_count\": \"1594\", \"text\": \"ORDER DISMISSING APPEAL\\nOrdinarily the Chief Justice exercises his discretionary powers in reviewing appeal cases on file to determine whether there is probable cause for permitting an appeal and to schedule the matter before the full court. 7 NTC 801(b). This is an automobile wrongful death case, and because of the fact the tape recordings of the trial were lost or misplaced, the court conducted a pretrial hearing before the full Court of Appeals.\\nThe defendant-appellant assigned seventeen grounds of error in his brief in support of his appeal. However, this case was decided by means of a jury trial, and the jury returned a unanimous verdict in favor of. the plaintiffs. Upon reviewing the file, hearing the arguments of counsel at the time of the pretrial hearing and discussing the matter following arguments, the full court finds that there has been no probable cause shown as to why the jury verdict was in error. The arguments in support of each assignment of error simply do not provide this court with any factual or legal grounds which lead it to conclude that there is probable cause that the jury was in error or that the trial judge erred in his guidance of the case before the jury.\\nTherefore the above-captioned appeal is hereby DISMISSED.\"}"

navajo_nation/11639509.json

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+"{\"id\": \"11639509\", \"name\": \"Grace YELLOWHAIR, Appellant, vs. Jimmy YELLOWHAIR, Appellee\", \"name_abbreviation\": \"Yellowhair v. Yellowhair\", \"decision_date\": \"1982-10-04\", \"docket_number\": \"No. A-CV-04-80\", \"first_page\": 149, \"last_page\": 149, \"citations\": \"3 Navajo Rptr. 149\", \"volume\": \"3\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Court of Appeals\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T22:54:12.751217+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Grace YELLOWHAIR, Appellant, vs. Jimmy YELLOWHAIR, Appellee.\", \"head_matter\": \"No. A-CV-04-80\\nCOURT OF APPEALS OF THE NAVAJO NATION\\nOctober 4, 1982\\nGrace YELLOWHAIR, Appellant, vs. Jimmy YELLOWHAIR, Appellee.\\nEleanor Shorty, Esq., Chinle, Navajo Nation (Arizona) for appellant and Lawrence Long, Esq., DNA-People\\u2019s Legal Services, Window Rock, Navajo Nation (Arizona) for appellee.\", \"word_count\": \"63\", \"char_count\": \"456\", \"text\": \"ORDER OF DISMISSAL\\nUpon stipulation of the above-named parties, by and through their respective counsel,\\nThe above-captioned appeal is hereby DISMISSED.\"}"

navajo_nation/11639792.json

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+"{\"id\": \"11639792\", \"name\": \"Ellen K. HUBBARD, Appellant, vs. CHINLE SCHOOL DISTRICT NOS. 24/25, APACHE COUNTY, AZ and ARA FOOD SERVICES, INC. Appellees\", \"name_abbreviation\": \"Hubbard v. Chinle School District Nos. 24/25\", \"decision_date\": \"1982-12-22\", \"docket_number\": \"No. A-CV-19-82\", \"first_page\": 167, \"last_page\": 172, \"citations\": \"3 Navajo Rptr. 167\", \"volume\": \"3\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Court of Appeals\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T22:54:12.751217+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ellen K. HUBBARD, Appellant, vs. CHINLE SCHOOL DISTRICT NOS. 24/25, APACHE COUNTY, AZ and ARA FOOD SERVICES, INC. Appellees.\", \"head_matter\": \"No. A-CV-19-82\\nCOURT OF APPEALS OF THE NAVAJO NATION\\nDecember 22, 1982\\nEllen K. HUBBARD, Appellant, vs. CHINLE SCHOOL DISTRICT NOS. 24/25, APACHE COUNTY, AZ and ARA FOOD SERVICES, INC. Appellees.\\nLawrence A. Ruzow, Esq., and AHen Sloan, Esq., Window Rock, Navajo Nation, Arizona for appellants and A. Dean Rickett, Esq., Flagstaff, Arizona for appeHees.\", \"word_count\": \"2641\", \"char_count\": \"15998\", \"text\": \"OPINION\\nI. QUESTION PRESENTED TO THE COURT OF APPEALS\\nThis is an action by two former employees of an Arizona state school district against the school district. On July 2, 1982 the Chinle District Court, the Hon. Homer Bluehouse presiding, ruled it had p\\u00e9rsonal and subject matter jurisdiction over the cause but it exercised discretion to decline jurisdiction over it. The sole question on appeal is whether the exercise of such discretion by the trial court was authorized and proper.\\nII. THE FACTUAL SETTING\\nThe facts reviewed here are taken from the pleadings and matters on f\\u00fce in this case, and they are assumed to be true for the sake of this opinion. Chinle School Districts No. 24 and 25 (the school district) are consohdated and they are organized under the school laws of the State of Arizona. The school district is composed of an elementary and a high school district serving the Chinle area. The Chinle Community and its surrounding area are an integral part of the Navajo Nation and its territory, and that area is also organized as the Chinle Agency for the purpose of the governmental business of the Bureau of Indian Affairs and for the purposes of the government of the Navajo Nation. The Chinle area lies in the heart of the Navajo Nation, and of course the school district Hes solely within the territory of the Navajo Nation. The district operates ten schools and district-wide school programs, and most of the approximately 4,000 pupils enroHed are members of the Navajo Tribe. Obviously the parents of these Navajo students are for the most part members of the Navajo Tribe, and those parents exercise their dual tribal-state citizenship by voting for members of the school board. The district's approximately 800 employees live and work within the Navajo Nation, and approximately one-half of that number are members of the Navajo Tribe.\\nThe school district receives a great deal of its operational funding from programs of the United States government designed for Indians ( See A.R.S. Sec. 15205 ), and it has admitted it receives funding under a number federal education laws, e.g. 25 U.S.C. Secs. 293a, 452-457. Aside from funding to the school district which is given solely due to the status of the student population as Indians, it receives governmental and quasi-governmental benefits from the Navajo Nation including police protection, fire department protection, utilities (water, gas, telephone, electricity, etc.) and other services. These benefits and services are provided by the Navajo Nation through its divisions, entities or organizations. There are indirect benefits to the school in the form of shopping centers housing, streets and roads, news dissemination and all the other benefits which are supported, provided or encourage by the government of the Navajo Nation.\\nIn short, the school district and its employees exists in a total Navajo environment within the Navajo Nation, and there are few aspects of the operations of the school district which do not affect or are not affected by the government of the Navajo Nation.\\nThe dispute in this case arises from the refusal of the school district, through its school superintendent and its governing board, to renew the contracts of a Navajo plaintiff by the name of Lucille L. Begay and a Navajo plaintiff by the name of Ellen K. Hubbard. Ms. Begay was the personnel director of the school district from 1974 until her contract for the 1981-1982 school term expired, and Ms. Hubbard was the assistant food service director, serving the district four years prior to the termination of her school year 1981-1982 contract. The plaintiffs complain (summing up very briefly) that the refusal to renew the contracts was in violation of the school's Navajo preference policy, the law of the Navajo Nation guaranteeing Navajo preference in employment (including termination) and the guarantee of freedom of expression under Navajo law.\\nWe do not reach the merits of the claims since this opinion is solely one on whether the trial court properly dismissed the case, but all these facts will be assumed to be true for the purpose of deciding the governmental interest of the Navajo Nation in exercising jurisdiction. The facts are important also for the purpose of deciding the claim of a quasi-governmental body of the State of Arizona to immunity from the exercise of our jurisdiction.\\nIII. THE QUESTION OF JURISDICTION\\nA. The Navajo Nation as an Independent Sovereign\\nAs far as the Navajo Nation is concerned, the State of Arizona is a foreign government. While the State of Arizona has yet to recognize the Navajo Nation as a separate sovereign. It does grant comity in the enforcement of Navajo decisions and law in a de facto kind of recogni- zation of our sovereignty. Begay v. Miller, 222 P. 2d 624, 628 (Arizona, 1950); Brown v. Babbitt Ford, Inc., 571 P. 2d 689, 695 (Ariz. App. 1977). The \\\"comity\\\" granted by the Arizona courts to our statutes and decisions is that they \\\"will give effect to the laws and judicial decisions\\\" of the Navajo Nation \\\"not as a matter of obligation, but out of deference and mutual respect.\\\" Brown, Id., p. 695. Where a decision is made within the jurisdiction of the courts of the Navajo Nation, that decision will be recognized as valid by the Arizona courts. Begay, Id., p. 628.\\nThe fact that the Navajo Nation is an independent sovereign, at least as regards the State of Arizona, is clear. A landmark American constitutional case, Worcester v. Georgia, ruled that Indian nations are \\\"distinct, independent political communities, retaining their original natural rights,\\\" and that they have ceased to be a state in the international law sense. 6 Pet. 515, 559 (1832). In 1978 the status of the Navajo Nation as a self-governing sovereign was reaffirmed by the United States Supreme Court, and it reaffirmed basic Indian affairs law under the United States Constitution that Indian nations are self-governing under the law of nations-international law. United States v. Wheeler, 435 U.S. 313, 326 (1978). See also Higgins, \\\"International Law Consideration of the American Indian Nations by the United States,\\\" 3 Arizona L. Rev. 74 (1961); Institute for the Development of Indian Law, \\\"The Indigenous People of Saskatchewan Take Their Rightful Place in the Community of Man,\\\" in Opekokew, The First Nation; Indians Government and the Canadian Confederation, 52 (Federation of Saskatchewan Indians, 1980); Opekokew, The First Nations: Indian Government in the Community of Man, 19-23 (Federation of Saskatchewan Indians, 1982).\\nThe relationship between the State of Arizona and the Navajo Nation is that of two independent sovereigns. As was said in the case Native American Church v. Navajo Tribal Council:\\n\\\". . . Indian tribes are not states. They have status higher than that of states. They are subordinate and dependent nations possed 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.\\\" 272 F.2d 131,134 (C.A. 10, 1959).\\nTherefore the Navajo Nation stands on the same footing with regard to the state of Arizona when its entities conduct business within the Navajo Nation as a foreign nation which conducts its affairs within the United States. We therefore look to rules of international law to decide whether the trial court properly exercised its discretion.\\nB. The Exercise of Jurisdiction over a Foreign Government\\nThere is little by way of domestic American law to guide us in ruling on this matter, and the presentations of counsel here, however, scholarly, provide us with little in the way of concrete guidelines.\\nOne case, involving the state taxation of a Mescalero Apache ski resort outside the boundaries of the tribe's reservation, does provide some guidance. Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973). There the Supreme Court held that Indians who go beyond their reservation land and their state constitutions, they can regulate activities taking place outside a reservation. Id. at 149-150. The final lesson to be taken from the ruling is that the doctrine of inter-governmental immunity is out of favor and will not be resurrected. Id at 155.\\nWhat was true for the Mescalero Apache Tribe should conversely be true for the school district here, and there would appear to be no bar to applying non discriminatory (i.e. contract, labor and tort) law to it. Because the State of Arizona has disclaimed control over the Navajo Nation, there is no reason that its governmental entities cannot be regulated when operating within the Navajo territorial jurisdiction.\\nOne noted international scholar has said that \\\"Jurisdiction\\\" refers to particular aspects of the general legal competence of states often referred to as sovereignty.1 Jurisdiction is an aspect of sovereignty and refers to judicial, legislative, and administrative competence.\\\" Brownlie, Principles of Public International Law, 261 (1966). In discussing jurisdiction the starting point and the presumption is that jurisdiction is territorial . Id. However, in civil cases courts normally look at where the facts in issue took place, as well as questions of allegiance, domicile, submission to the jurisidiction and like matters. Id. at 262.\\nThere are no consistent principles under international law for the exercise of juridiction over the political subdivisions and state agencies of foreign states. Id. at 285. The three approaches are (1) finding immunity in the basis a political subdivision is an organ of a state; (2) finding that sovereignty for the purpose of immunity lies only in the central organs of a state; and (3) looking at the function of the entity in deciding whether it is carrying out political acts (which are immune) or simply administrative acts. Id. The test to be applied would appear to be effective control by the foreign government. Id.\\nUnder federal domestic law it is clear that a foreign government or entity can bring suit in United States courts so long as it is recognized by the United States and at peace with it. Pfizer Inc. v. India, 434 U.S. 308, 320 (1978). The Courts of the Navajo Nation take the same view.\\nAs to allowing suit against a foreign government, there is no command in federal law that the Navajo Nation grant immunity in such suits. \\\"(T)he priviledged position of a foreign state is not in explicit command of the Consititution. It rests on considerations of policy given legal sanction by this Court.\\\" National City Bank v. Republic of China, 348 U.S. 356, 359 (1954). Indeed considering the aspects of a waiver of sovereign immunity by the host sovereign, the ability of the foreign sovereign to be sued in its own courts, a lack of impact upon friendly relations and fair play, there is no reason a foreign sovereign cannot be sued. Id. 362-366.\\nWe have no doubt that our courts do indeed have jurisdiction over such suits, and we have no doubt that the tests of the National City Bank case could be satisfied. The Navajo Nation does relax sovereign immunity to the extent of insurance, a school district can be sued in the State of Arizona, and given the facts recited above,, fair play would support the extension of jurisdiction. A school district is not so important or central an organ of the government of the State of Arizona that it should be exempted from having its conduct reviewed by the Navajo Courts. It is indeed not a central organ of the State of Arizona, and the acts complained of here are iii no way political. They are acts falling under the law of contract, tort and civil rights.\\nHowever there is another important consideration which this court takes into account. That is the doctrine of comity which says that \\\"one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers . . have had an opportunity to pass upon the matter.\\\" Darr v. Burford, 399 U.S. 200, 204 (1949).\\nThe trial court found there were matters of comity in the relationship between the courts of Arizona and the District Court for the District of Chinle, and that principles of comity require absentation from hearing the cases. In the National City Bank case it was noted that friendly relations with China were a factor in excercising or declining to grant immunity. Above at 365. Our courts should tread lightly in dealing with affairs of relations with foreign governments in the absence of clear indications from the Executive Branch of the Navajo Nation because of the importance of relations with states and their organs. See Id. at p. 361.\\nTherefore we conclude by holding clearly, with no mistake or misinterpretation to be assumed, that the courts of the Navajo Nation do have jurisdiction over this defendant and that such jurisdiction is fully supported by international and domestic American law. The parties, the events and the operations of the defendant ah he within the Navajo Nation's territory, and since they involve matters of civil rights law, labor policies and the education of children, the subject matter of this suit is clearly within the authority of the Navajo Courts. The entity and the individuals carrying on the work of the entity are within our personal jurisdiction. However, the decision of the trial court to exercise restraint in deference to the courts of te State of Arizona and the United States District Court for the District of Arizona was proper under principles of comity. The District Court had the proper discretion to not exercise jurisdiction in this case, and this court finds no compelling reason to say that the discretion was abused. There may be a case in which considerations of policy and the protection of individual Navajo in and effective forum will require a different outcome, but those matters will be presented on a case by case basis. Further, the courts of the Navajo Nation should not adventure into the field of affairs with state governments without a clear indication from the Chairman of the Navajo Nation, exercising his or her external affairs powers, or the Navajo Tribal Council, exercising its lawmaking authority, that there is a mandate to do so.\\nSince this opinion deals with a major jurisdictional question we make one further point clear; This opinion does not decide whether the State of Arizona his concurrent jurisdiction over the subject matter of the suits filed in the Chinle District Court. It may well be that the jurisdiction of our courts is exlusive, given the location and subject matter involved. See Fisher v. District Court, 424 U.S. 382 (1976). It may also be argued that the parties involved, Indian plaintiffs and a state school district, somehow provide the basis for the extension of State court jurisdiction. We do not decide that question. We simply rule that our courts have jurisdiction over the subject and over all the parties to the suit. Having decide that our courts do have jurisdiction, we have applied principles of public international law, comity in particular, in order to uphold the use of discretion by the Chinle District Court. Due to the fact that comity is a doctrine which relies upon good will from a foreign sovereign and the policies of the executive and legislative bodies of government, the conduct of the State of Arizona in the future and the guidance of the Navajo Government could require us to arrive at a different conclusion.\\nTherefore, the judgment of the District Court for the District of Chine is hereby AFFIRMED in accordance with the reasons stated here, and the reasoning of this case as to the proper exercise of comity and abstention is confined to its facts\"}"

navajo_nation/11639984.json

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+"{\"id\": \"11639984\", \"name\": \"NAVAJO NATION, Plaintiff, v. KAREN HALONA, Defendant\", \"name_abbreviation\": \"Navajo Nation v. Halona\", \"decision_date\": \"1981-11-10\", \"docket_number\": \"No. WR-CR-6107-81\", \"first_page\": 189, \"last_page\": 190, \"citations\": \"3 Navajo Rptr. 189\", \"volume\": \"3\", \"reporter\": \"Navajo Reporter\", \"court\": \"Window Rock District Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T22:54:12.751217+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"NAVAJO NATION, Plaintiff, v. KAREN HALONA, Defendant.\", \"head_matter\": \"WINDOW ROCK DISTRICT COURT\\nNovember 10, 1981\\nNo. WR-CR-6107-81\\nNAVAJO NATION, Plaintiff, v. KAREN HALONA, Defendant.\", \"word_count\": \"898\", \"char_count\": \"5202\", \"text\": \"OPINION AND ORDER\\nHonorable Tom Tso, Judge presiding.\\nThis matter comes before the Court on the defendant's motion to suppress physical evidence, dated October 05, 1981.\\nThe defendant complains that some ground leaves of a green vegetable substance, three roach clips, a matchbook and cigarette papers, a bottle with seeds and a fish bowl should be suppressed as evidence in this case. The basis for the complaint is that Rule 23 of the Rules of Criminal Procedure was not followed, items not recited in. the warrant were seized and the warrant was not based upon probable cause.\\nThe affidavit supporting the application for the search warrant shows that a Navajo police officer went to the house which was searched for a proper purpose - to try to locate the place of an incident for which the officer was called. When the officer went to the door she saw a plant on a window shelf. The officer had a right to knock on the door while investigating a case, and she had a right to check the rear of the house while performing her duties. In short, she has a right o be there. This court cannot help but take judicial notice of the fact that our Navajo police officers are given extensive training in drug identification and detection, and certainly officers can make a sufficient identification of plants to report a justified suspicion of the presence of a marijuana plant. If someone happens to have suspicious-looking plants with a leaf pattern which looks like marijuana, they cannot complain later if action is taken to investigate the matter further. The point is that police officers are entitled and indeed have a duty to act when they see what appears to be marijuana while performing their duties.\\nThe affidavit properly showed the court there was probable cause to believe a crime was being committed on the premises, and officers searched the house based upon a warrant valid on its face.\\nTrue, the warrant was limited to the seizure of \\\"marijuana.'' That certainly dispose of the suppression of the vegetable substance and the seeds because those items were within the scope of the warrant itself. As to the roach clips, the matchbook and cigarette papers and the fish bowl, roach clips are certainly associated with marijuana, as are cigarette papers, an they are properly seizable evidence with respect to the scope of the warrant. As to the fish bowl, it is the court's understanding that the bowl is a container for some of the evidence properly seized. Therefore the Court finds all the items seized to be within the scope of a valid search.\\nOf more concern is the fact the police officers conducting the search did not fully comply with the inventory requirements of Rule 23. It appears that the defendant returned to her home while the search was in progress, and while she was present for the purpose of preparation of an inventory and receipt in accordance with the rule, the inventory was not made in her presence and another police officer witnessed it. The inventory requirement is mandatory and it is imposed upon the police for a proper purpose - to protect the rights of a person whose property is seized so that property may not be lost or that property which was not seized during the search may not be introduced into evidence at trial.\\nThe Court is placed in a quandry because this ruling should not constitute a judicial approval of the breach of the rules of court. However the conduct of the officers in failing to properly compile and deliver an inventory does not rise to \\\"constitutional\\\" proportions under the provisions of the Indian Civil Rights Act. Exclusionary rules are based upon legal fictions. That is, the courts make a determination that certain kinds of conduct on the part of the police constitute the violation of basic rights. The compilation and delivery of an inventory is not a basic right and indeed many jurisdictions do not have our strict requirements. In the absence of the violation of a fixed right under the Indian Civil Rights Act a defendant must be prepared to come before the court and show how police conduct or misconduct injures him or her or how it prejudices his or her defense. In this case the presence of absence of an inventory made and delivered on the scene in a proper way does not appear to affect the defendant's case. The defendant has access to the inventory which was prepared, and she can challenge the introduction of any item of evidence by testimony a certain item was not taken from her home or by challenging the police chain of evidence.\\nTo summarize: The conduct of the police in this case is condemned, but that failure to fully perform a mandatory duty cannot be the basis for the granting of a motion to suppress because there was no injury and there is no shown prejudice. The warrant was supported by probable cause, the items seized were within the scope of a proper search and the requirements of the Navajo Bill of Rights and the Indian Civil Rights Act were met. Therefore it is hereby ORDERED that the defendant's motion to suppress physical evidence should be and is hereby DENIED.\"}"

navajo_nation/11640044.json

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+"{\"id\": \"11640044\", \"name\": \"REUBEN MARIANO, Plaintiff, v. BAH MARY ARVISO, et.al., Defendants\", \"name_abbreviation\": \"Mariano v. Arviso\", \"decision_date\": \"1981-12-29\", \"docket_number\": \"No. CP-CV-209-81\", \"first_page\": 196, \"last_page\": 196, \"citations\": \"3 Navajo Rptr. 196\", \"volume\": \"3\", \"reporter\": \"Navajo Reporter\", \"court\": \"Crownpoint District Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T22:54:12.751217+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"REUBEN MARIANO, Plaintiff, v. BAH MARY ARVISO, et.al., Defendants.\", \"head_matter\": \"CROWNPOINT DISTRICT COURT\\nDecember 29, 1981\\nNo. CP-CV-209-81\\nREUBEN MARIANO, Plaintiff, v. BAH MARY ARVISO, et.al., Defendants.\", \"word_count\": \"285\", \"char_count\": \"1639\", \"text\": \"ORDER\\nHonorable Marie F. Neswood, Judge presiding.\\nA petition for the removal of this action to the United States District Court for the District of New Mexico was filed in this court on December 21, 1981. The removal petition, filed in U.S. District Court by the United States Attorney for New Mexico, alleges that the courts of the United States are vested with jurisdiction over this dispute due to the fact defendants Dodge and Plummer are acting as federal employees in the matters complained of.\\nUnder 28 U.S.C. Sec. 1446(e), where a copy of the removal petition is filed with the clerk of a state court, the clerk is required to \\\"effect\\\" the removal to federal court. The \\\"State court\\\" is also to proceed no further. This court is a \\\"State court\\\" for the purpose of the statute. While there has been no order for the records and proceedings in this court to be brought before the United States District Court under 28 U.S.C. Sec. 1447(b), this court's records should be transmitted to the United States District Court for the convenience of that court and the parties to this action.\\nIt is therefore\\nORDERED that there shall be not further proceedings herein except upon any remand of the United States District Court, and it is further ORDERED that the Clerk of this court shall make a copy of the file herein to be retained with the records of this court and that she shall forward the original court file to the Clerk of the United States District Court for the District of New Mexico at Albuquerque.\"}"

navajo_nation/11640402.json

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+"{\"id\": \"11640402\", \"name\": \"NAVAJO NATION, Plaintiff, v. ROSS BIGMAN, Defendant\", \"name_abbreviation\": \"Navajo Nation v. Bigman\", \"decision_date\": \"1982-04-26\", \"docket_number\": \"No. WR-CR-7588-81\", \"first_page\": 231, \"last_page\": 232, \"citations\": \"3 Navajo Rptr. 231\", \"volume\": \"3\", \"reporter\": \"Navajo Reporter\", \"court\": \"Window Rock District Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T22:54:12.751217+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"NAVAJO NATION, Plaintiff, v. ROSS BIGMAN, Defendant.\", \"head_matter\": \"WINDOW ROCK DISTRICT COURT\\nApril 26, 1982\\nNo. WR-CR-7588-81\\nNAVAJO NATION, Plaintiff, v. ROSS BIGMAN, Defendant.\", \"word_count\": \"982\", \"char_count\": \"5831\", \"text\": \"OPINION AND ORDER\\nHonorable Henry Whitehair, Judge presiding.\\nThis opinion and order is based upon a motion for discovery made by the defendant on February 24, 1982. The motion demands witness statements taken by the Navajo Nation; tests, demonstrations and like matters; and documents and exhibits the prosecution intends to introduce at trial.\\nRule 12 of the Rules of Criminal Procedure gives the court the discretion to grant criminal discovery motions upon a showing the items sought \\\"may be material to the defense\\\" and a showing the request is reasonable. The showing of materiality here was that the prosecution's evidence and testimony needs to be known by the defendant in order to prepare for trial. That showing will have to suffice for the showing of reasonableness, because there was no specific showing which addressed reasonableness.\\nThe questions before the court are 1) The proper scope of a discovery order, and 2) the sufficiency of the motion.\\nThere is no outside precident which will give clear guidance to the court in deciding what the proper scope of discovery will be. Our Rule 12 was apparently based upon Rule 16 of the Federal Rules of Criminal Procedure. However there is a large difference in our rule and the Federal rule. Rule 16 F.R.Cr.P. limits the discovery of witness statements to those of the defendant and exempts government materials which are its work product. R. 16(a)(1), (a)(2). Our rule permits the discovery of any books, papers, documents, etc. the prosecution has which are \\\"obtained from the defendant or elsewhere.\\\" Therefore our rule is in reality an \\\"open file\\\" rule. That is, there is a common practice among the various United States Attorneys and state prosecutors to permit the defendant to inspect the prosecution file in order to see what the government's case is. This practice was spurred by the case of Brady v. Maryland, which requires the revelation of evidence favorable to the defendant. 373 U.S. 83 (1963). Under this rule even a negligent failure to disclose favorable evidence may constitute a denial of due process. See United States v. Auten, 632 F.2d 478 (CA 5, 1980); Ogden v. Wolf, 522 F.2d 816 (CA 8, 1975); United States v. McCrane, 527 F.2d 906 (CA 3, 1975); Giglio v. United States, 405 U.S. 150 (1972); United States v. Anderson, 574 F. 2d 1347 (1978).\\nGiven the fact the Judges of the Navajo Nation quite apparently had Rule 16 of the federal criminal rules in mind, and given the fact of the Brady line of cases, the court must conclude the scope of our Rule 12 is broad and can encompass any kind of matter.\\nThe only limitations on the full scope of Rule 12 are the required showings of materiality to the defense and reasonableness. The defendant here simply says he needs these things to prepare for trial. There is no showing of any Brady argument, but that may well not be necessary under our rule. Because we do have an \\\"open file\\\" rule and because the defense counsel has a duty to prepare for trial, the materiality element would appear to be satisfied by a showing, by saying so and by asking for certain things, that the materials are needed for trial preparation. To not do so given our rule would be ineffective assistance of counsel. See, \\\"Modern Status of Rule as to Test in Federal Court of Effective Representation by Counsel,\\\" 26 ALR Fed. 218; \\\"Ineffective Assistance of Counsel,\\\" 5 Am.Jur. Proof of Facts 2d, 267.\\nThere was no facial showing of reasonableness in the motion, so the court is left to examine what is asked for. Witness statements are reasonable because obviously the defense would want to examine a prosecution witness on any prior inconsistent statement and would want to know that the essence of the witness' testimony will be. Tests, demonstrations and other reports based on possible demonstrative evidence are reasonable as well because the defendant will want to prepare to rebutt any unfavorable results or matters shown by them. Exhibits and other documentary evidence to be introduced at trial are reasonably discoverable in order to prepare objections and rebuttal evidence.\\nTherefore the court must conclude that the scope of the motion is almost unlimited and there has been skimpy yet proper showing for the court to exercise its discretion and permit a discovery order.\\nOur rule may be extremely liberal one, and the court notes the lack of discovery by the prosecution. This is not to say that the court could not order such discovery because of the fact trial courts have inherent powers to require the production of all relevant facts in a criminal trial, any statutory limitations notwithstanding. United States v. Nickell, 552 F.2d 684 (CA6, 1977).\\nTherefore, in compliance with Rule 12, R.Cr.P., the court enters the following ORDERS:\\n1. The motion of the defendant is hereby GRANTED, and he shall be permitted to inspect and copy all witness statements, reports, tests, demonstrations, documents, exhibits and other matters in the custody and control of the prosecution with respect to the above-captioned matter; and\\n2. The permitted discovery shall take place at the office of the Prosecutor or the office of the individual or agency having custody and control of the sought materials; and\\n3. Counsel of record for the Navajo Nation shall advise counsel for the defendant of the location and custodian of the materials sought; and\\n4. Discovery shall be permitted in accordance with this order no later then ten days from the date of its entry; and\\n5. Reproduction of the sought materials shall be made at the location of the materials or a place reasonably agreed to or accessable to their place of location, and the defendant shall pay any costs of reproduction of such materials.\"}"

navajo_nation/11640489.json

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+"{\"id\": \"11640489\", \"name\": \"OREN FREJO, Plaintiff, v. AGNES BARNEY, Defendant\", \"name_abbreviation\": \"Frejo v. Barney\", \"decision_date\": \"1982-05-24\", \"docket_number\": \"No. WR-CV-52-82\", \"first_page\": 237, \"last_page\": 238, \"citations\": \"3 Navajo Rptr. 237\", \"volume\": \"3\", \"reporter\": \"Navajo Reporter\", \"court\": \"Window Rock District Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T22:54:12.751217+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"OREN FREJO, Plaintiff, v. AGNES BARNEY, Defendant.\", \"head_matter\": \"WINDOW ROCK DISTRICT COURT\\nMay 24, 1982\\nNo. WR-CV-52-82\\nOREN FREJO, Plaintiff, v. AGNES BARNEY, Defendant.\", \"word_count\": \"874\", \"char_count\": \"5198\", \"text\": \"RULING ON MOTION TO TRANSFER JURISDICTION\\nHonorable Tom Tso, Judge presiding.\\nThis is a child custody and modification of child support action in which the parties were asked to provide the court with affidavits giving factual data upon which to determine both the jurisdiction of this court and the McKinley County, New Mexico District Court. The question of tribal versus state jurisdiction with regard to members of the Navajo Tribe was discussed in detail in the court's May 12th decision.\\nThe parties are in agreement that on September 2, 1976, when Mr. Frejo filed a petition for the dissolution of the marriage of the parties in state court, the parties and the children were in the State of New Mexico. Mr. Frejo says he lived at Zuni, and Mrs. Barney says she lived in Gallup. However it is clear that the children lived in GaHup. On November 22, 1976, when the decree of dissolution was granted, all the concerned individuals lived in Gallup. It is agreed that when this action was filed on February 11, 1982, the parents and children lived within the Navajo Nation. Mr. Frejo and Karen Frejo lived in Shiprock, and Mrs. Barney and Kurt and Kim Frejo lived in Tohatchi. Both adults are employed by the Bureau of Indian Affairs.\\nThe court finds that there is no question as to the validity of the New Mexico divorce decree. AH the necessary parties to the decree resided in New Mexico outside the outer boundaries of the Navajo Nation at the time, and indeed the respondent has properly pointed out that suit was filed in state court due to the 90 day residence requirement of the Navajo Tribal Code.\\nHowever the question of whether or not this court should decline to exercise jurisdiction depends upon the current significant contacts of the parties and the children to the Navajo Nation, and the responsibility of this court and the Navajo Nation toward the children. The main interest of the court is the protection of the childrens' interests, and the Navajo Tribal Council's findings as to the duties of the Navajo Nation toward its children with respect to the Juvenile Code are fuHy applicable here:\\n\\\"(E)ach child under the jurisdiction of the Tribal Juvenile Court shall receive, preferably in his own home, the care, guidance, and control that is con ductive to his welfare and the best interest of Tribe, the State and the United States; that family ties be preserved and strengthened whenever possible;... and the peace and security of the community and of its individual citizens be safeguarded.\\\" 9 NTC Sec. 1001.\\nThe court concludes that there is concurrent jurisdiction with the State of New Mexico in this matter. While it is true the state court may have concurrent jurisdiction to modify its decree, the modern trend is to litigate child custody at the place of the custody of the child and to litigate child support where a decree can be readily enforced upon the body or resources of the person required to give support. Therefore this court will retain jurisdiction.\\nThe motion is denied because of these factual matters:\\n1. The parties and the children reside within the Navajo Nation;\\n2. The parties and the children are Navajo;\\n3. The children attend school at Shiprock and Tohatchi, making their teachers and counsellors potential witnesses for the child custody issue;\\n4. There are other potential witnesses with regard to child custody, including Navajo Division of Social Welfare social workers, Public Health Service medical doctors and personnel, friends, and neighbors, co-workers, etc.;\\n5. The State of New Mexico has no authority to cause service of subpoenas upon member of the Navajo Tribe residing within the Navajo Nation, and many of the witnesses would fall within this category;\\n6. Social work reports with regard to the parties and children have already been submitted by the Navajo Division of Social Welfare, and it would not be in the best interests of the children to prolong the child custody dispute any further or cause a duplication of effort which has already been undertaken;\\n7. This court can make a speedy determination of the childrens' best interests, in the context and environment of Navajo culture, thereby forwarding the policies of Navajo protection of its children, tribal self-determination with respect to its members and use of a forum closest to the parties in terms of contacts.\\nAs to the effect to be given the New Mexico decree, the respondent was quite correct that this court will honor and enforce that decree. Guardianship of Katherine Denise Chewiwi, 1 Navajo R. 120 (1977). This court wishes to discourage forum-shopping in a jurisdiction which is close to us, and therefore not only will the decree be fully enforced by this court, but it will be modified only upon the same standards set by the law of New Mexico. It was within the expectations of the parties that New Mexico law would govern the divorce, and it should also be their expectation that New Mexico law will govern the questions before this court.\\nBased upon the foregoing considerations, the motion to transfer jurisdiction is hereby DENIED.\"}"

navajo_nation/11640518.json

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+"{\"id\": \"11640518\", \"name\": \"KEE BROWN, JR., Plaintiff, v. ROSITA BEGAY BROWN, Defendant\", \"name_abbreviation\": \"Brown v. Brown\", \"decision_date\": \"1982-05-17\", \"docket_number\": \"No. WR-C-D-547-75\", \"first_page\": 239, \"last_page\": 240, \"citations\": \"3 Navajo Rptr. 239\", \"volume\": \"3\", \"reporter\": \"Navajo Reporter\", \"court\": \"Window Rock District Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T22:54:12.751217+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"KEE BROWN, JR., Plaintiff, v. ROSITA BEGAY BROWN, Defendant.\", \"head_matter\": \"WINDOW ROCK DISTRICT COURT\\nMay 17, 1982\\nNo. WR-C-D-547-75\\nKEE BROWN, JR., Plaintiff, v. ROSITA BEGAY BROWN, Defendant.\", \"word_count\": \"857\", \"char_count\": \"4872\", \"text\": \"OPINION AND ORDER\\nHonorable Tom Tso, Judge presiding.\\nThe business before the court in this case is the plaintiff's motion to reopen the judgment which has been entered and vacate it with the exception of the marriage dissolution, which has been granted.\\nOn March 4, 1977 a default judgment on the defendant's counterclaim was entered due to the nonappearance of the plaintiff at a scheduled hearing. Shortly after that, on April 22, 1977 the plaintiff moved the court to set aside the default judgment, and a hearing on that motion was set for May 20, 1977. At the time of the hearing on the motion the plaintiff and his counsel did not appear, so the motion was dismissed for nonprosecution. On April 20, 1982, over five years following the entry of the default judgment and almost five years from the time the last motion to set aside the judgment was heard, the plaintiff wishes a second chance.\\nThe Courts of the Navajo Nation use the common law rule on reopening and vacating judgments. Rule 23 of the Rules of the Civil Procedure states, in pertintent part:\\n\\\"At any time after the final order or judgment, the Court may in the interest of justice reopen a case in order to correct errors or to consider newly-discovered evidence, or for any other reason consistent with justice.\\\"\\nThe vacation or erasure of a judgment is within the sound discretion of the court, but public policy favors the finality of litigation. 46 Am.Jur. 2d, Judgments Sec. 682. As to default judgments it has been said that judicial discretion is usually used in favor of granting an application to set them aside so the case can be heard on the merits. Id. Sec. 686.\\nIn balancing the interests of the parties the court must look to two factors which stand out here.\\nThe first factor is that of the time which has passed. The plaintiff complains of the $350.00 per month child support which has been either paid or which is counting up over the years, and yet he did not appear at the hearing on May 20, 1977 and he has sat idle over the past five years with judgment intact. Not only Rosita Begay Brown, the defendant, but Tanya Sharon Brown, the child of the parties, has been relying upon the fixed child support amount all this time. It would hardly be fair to let Mr. Brown sit on his rights over the years and then permit him to now come in and cry that the March, 1977 order was unfair to him. Judges have respect for the finality of judgments, and given a resulting reluctance to interference with them, courts frequently will not give assistance where the applicant did not act with reasonable diligence. Id. Sec. 706. This is certainly the case here.\\nThe second factor to be considered is the fact that the denial of the prior motion to vacate the judgment is the law of the case. Normally strict rules as to the finality of orders on motions are not applicable and subsequent motions may be made on the same ground. 56 Am.Jur. 2d, Motions, Rules, and Orders Sec. 30. While this court may possess the authority to overlook the order of a prior sitting judge for good cause shown, that good cause is not sufficient to overcome the finality of the judgment entered. Perhaps the plaintiff was unjustly treated for the failure of his counsel to appear on March 3, 1977. It may be that the plaintiff's counsel on the case for the May 20, 1977 hearing was in breach of his lawyerly duties. However, given the passage of time and the plaintiff's failure to do anything until now, this court should not penalize the defendant by making her relitigate all the issues that were to be resolved at trial on March 3, 1977.\\nTherefore the court will leave the plaintiff to any remedies he may have against his prior counsel in malpractice actions. That is the only remedy available to him at this point which would be fair to the defendant.\\nAs to the question of child support, since the support of a minor child is a continuing modifiable obligation, the plaintiff will be left to file a proper petition to modify the decree as to child support. He must of course show a substantial change in circumstances from the time of the entry of the initial decree in order to justify a modification of child support. The court makes no decision at this time as to whether child support arrearages may be modified retroactively or whether only present and future child support payments may be modified. That is a matter which would require careful briefing with particular emphasis on the equities of the matter and the modern policy to not permit retroactive modification. See Uniform Marriage and Divorce Act (U.L.A.) Sec. 316(a); and Arizona enactment as construed.\\nGiven the foregoing considerations, the plaintiff's motion to reopen case and vacate order in part is hereby DENIED.\"}"

navajo_nation/11640557.json

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+"{\"id\": \"11640557\", \"name\": \"NAVAJO NATION, Petitioner, v. NELSON JESUS, HENRY JESUS, BENNIE LITSON, And any unknown owners, Respondents\", \"name_abbreviation\": \"Navajo Nation v. Jesus\", \"decision_date\": \"1982-05-24\", \"docket_number\": \"No. WR-CV-117-82\", \"first_page\": 241, \"last_page\": 245, \"citations\": \"3 Navajo Rptr. 241\", \"volume\": \"3\", \"reporter\": \"Navajo Reporter\", \"court\": \"Window Rock District Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T22:54:12.751217+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"NAVAJO NATION, Petitioner, v. NELSON JESUS, HENRY JESUS, BENNIE LITSON, And any unknown owners, Respondents.\", \"head_matter\": \"WINDOW ROCK DISTRICT COURT\\nMay 24, 1982\\nNo. WR-CV-117-82\\nNAVAJO NATION, Petitioner, v. NELSON JESUS, HENRY JESUS, BENNIE LITSON, And any unknown owners, Respondents.\", \"word_count\": \"1950\", \"char_count\": \"11420\", \"text\": \"FINDINGS OF FACT OPINION AND JUDGMENT\\nHonorable Tom Tso, Judge presiding.\\nThe above entitled case came before this court for a hearing on the petitioner's petition for hearing to determine livestock ownership on April 21, 1982; Notice requirement under 3 NTC 1304 (b) and 3 NTC 1305 (a) has been properly complied with; Petitioner were represented by the Office of the Prosecutor; Respondent Nelson and Henry Jesus were present and represented by their attorney, William Shepard, Esq.; Respondent Bennie Litson also present and represented by his attorney, Norman Cambridge, Esq.; The court having received testimonies and evidence from the parties, it makes the following findings of fact:\\n1. Petitioner in this case is acting through the Navajo Resources Enforcment Agency, which is vested the authority to enforce Tribal Range and Livestock Laws.\\n2. All the above named respondents are enrolled members of the Navajo Tribe of Indians and presently reside upon the Navajo Indian Reservations.\\n3. Respondent Litson claims that he is in the business of buying, selling, and trading livestock including cattles and horses. Said business is conducted without any permit, license or permission from either the Navajo Tribe or the Bureau of Indian Affairs.\\n4. Prior to January 12, 1982, Respondents Nelson and Henry Jesus offered to sell to Bennie Litson certain livestocks of which they claimed they are lawful owners:\\n1. One bay gelding with no brand\\n2. One black mare with no brand\\n3. One bay stud colt with no brand\\n4. One jsorrel stud Shetland with State Brand of OnO on LHH\\n5. One sorrel mare with Navajo Tribal brand Y over CL and a -N\\n6. One black filly colt with no brand (colt to sorrel mare with Navajo Tribal brand).\\n5. Respondents Jesus claim that they own the horses since they were born, and they were never branded because they (Jesus) do not have any grazing permit.\\n6. Respondents Jesus testified at trial that approximately two (2) years ago the one sorrel stud Shetland came to their home and since then kept the Shetland pony around their home, and to this day nobody has claimed ownership of that Shetland pony.\\n7. On January 11, 1982 defendant Litson bought said horses from Henry Jesus for a total amount of $300.00.\\n8. The bill of sale dated January 11, 1982 indicated that the seller Henry Jesus sold to buyer Bennie Litson one black mare, one colt, one bay stud, and one stud, and the bill of sale is authenticated by respondent Nelson Jesus.\\n9. The transaction took place in Sawmill, Navajo Nation (Arizona) in District No. 18 without the knowledge of the Sawmill Grazing Committee Member, and the animals were removed to Tsaile, Navajo Nation (Arizona), the residence of respondent Litson, which is located in Ditrict 11. The animals were transported without the knowledge of Tsaile/wheatfields Grazing Committee Member.\\n10. Subsequently defendant Litson attempted to haul said livestock to an auction sale in Aztec, New Mexico while the animals were still unbranded, and in the process of doing so stopped at the Livestock Inspection Station in Shiprock, Navajo Nation (New Mexico) where all the animals were seized.\\n11. After the animals were properly seized by the Range Enforcement Agency Department, the Department held an administrative hearing on January 20, 1982 at the Office of the Prosecutor in Window Rock, Arizona with the presence of all parties involved.\\n12. At the administrative hearing the respondents were given opportunity to prove ownership, and in the process of doing so, a Louise L. Begay, C#55,527 was able to produce sufficient proof and proper legal documentation (a Navajo Tribal Grazing Permit No. 17-1896) to show that two of the impound livestock were hers, to wit: one sorrel mare with Navajo Tribal brand Y over CL, and one black filly colt. These animals were released to her and they are not part of the determination of livestock ownership held on April 21, 1982.\\n13. Pursuant to the testimony and evidence presented, the ownership of the four (4) horses in question are doubtful and therefore should be forfeited to the Navajo Tribe.\\n14. After the hearing the court invited briefs from the parties on several issues, and up to this date no briefs have been submitted. The court will at this time address several issues which it feels needs discussion:\\nOPINION\\n1. DOES THE NAVAJO TRIBAL LAW REQUIRE A BRAND ON ALL LIVESTOCK FOUND WITHIN THE NAVAJO NATION?\\nThere seems to be an assumption that only livestock that are grazing on the Navajo Reservation are required to be branded, and if livestock are kept in a corral, then a brand is not necessary. In this case respondents testified that their animals graze in the immediate area and presents problems because respondents have to go out looking for these animals, in attempt to locate them and return to their home.\\nThose individuals with this assumption are confused on the requirements of a grazing permit and the requirement of a brand.\\nTitle 3 NTC \\u00a7 781(a) states:\\n\\\"All livestock grazed on the Navajo Reservation must be covered by an authorized grazing permit issued by the Superintendent based upon the recommendation of the District Grazing Committee.\\\"\\nClearly this law require all livestock grazing on the Reservation to be covered by a grazing permit. There is an indication that one need not have a grazing permit if his animal is to be impounded at all times, and not grazing. In this manner, perhaps the assumption is proper.\\nThe specific statutes dealing with brands are found at 3 NTC Sec. 2001, et. seq. which state the Navajo Tribe shall require every individual owning range livestock to adopt and record a brand and earmark with which to brand and mark such livestock. A brand can be obtained with a grazing permit or applied for from the state. The point is that all livestock must be branded. If an individual has a grazing permit, chances are that he will also be assigned a brand from the B.I.A., and that is the brand that he has to use on his animal. If an individual does not have a grazing permit but has an animal which he keeps impounded all the time, that particular animal also has to be branded and the brand can be obtained through the state. Clearly these sections state that every animal, whether covered or not by a grazing permit, has to be branded. Paragraph 3 NTC \\u00a7 1301 (1) authorizes the livestock inspectors to seize all livestock not branded as required.\\nTherefore, as a matter of law, all animals either grazing or kept in a corral on the Navajo Reservation has to be branded.\\n2. IS IT LAWFUL TO BE IN POSSESSION OF A HORSE OR CATTLE THAT IS UNBRANDED?\\nBased on the court's discussion in point 1, it seems quite clear that it is unlawful to be in possession of an unbranded animal, in fact under 7 NTC 1301 (1), livestock inspectors are directed and ordered to seized all livestock that are not branded as required.\\nPursuant to 3 NTC Sec. 1251, et. seq. the livestock inspectors are directed not to grant a certificate of inspection of unbranded livestock and further have the charge to prevent any livestock from being shipped, driven or transported unless identification by proof or by bill of sale is signed by the owner of the livestock.\\nTherefore, as the matter of law it is unlawful to be in possession of an animal that is not branded.\\n3. WHO HAS THE AUTHORITY TO AUTHENTICATE BILLS OF SALE?\\nA bill of sales executed by respondents on January 11, 1982 shows that Henry Jesus was the seller, Bennie Litson was the buyer, and respondent Nelson Jesus was the witness. The question presented here is whether these respondents have the authority to authenticate bill of sales. If not, is that particular bill of sale legal and valid.\\nPursuant to 3 NTC Sec. 1251 (b), livestock Inspectors appointed may authenticate bills of sale of livestock, brands and marks, and deliver certificate of acknowledgement thereto under their hands and seals.\\nThe statute is very clear as to who can authenticate bills of sale - pursuant to the above section livestock inspectors possess and are invested with that ability. Therefore, any bill of sale not authenticated by the livestock inspectors are invalid and are illegal.\\nTherefore, as a matter of law, I conclude that the bill of sale executed by respondents on January 11, 1982 is void and should be held invalid.\\n4. IS IT LAWFUL TO SELL AND TRANSPORT AN ANIMAL FROM ONE DISTRICT INTO ANOTHER DISTRICT?\\nIn this case the animals were bought in Sawmill, Navajo Nation (Arizona), which is located in District 18, and they were taken into District 11, Tsaile, Navajo Nation (Arizona) without the knowledge of the Grazing Committee members either at Sawmill or Tsaile. Pursuant to 3 NTC Sec. 703 (3), one of the purpose of the grazing regulations is to adjust the livestock numbers to the carrying capacity of the range so that the livestock economy of the Navajo Tribe will be preserved.\\nPursuant to 3 NTC Sec. 710 (4), it is a crime to willfully allow livestock to drift from one district to another, and the owner is subject to a trespass action if he permits such drifting.\\nBased on these two provisions of the Navajo Tribal Code, it is clearly implied that it is undesirable to allow livestock to leave one district and to go into another district.\\nThe law does not specifically prohibit selling and transporting animal from one district to another district, however it should be done with knowledge of the grazing committee member from the area from which the animal is sold and also with the knowledge of the grazing committee member from the area to which the animal is being transported .\\n5. WHAT TYPE OF LICENSE, PERMIT, ETC. IS REQUIRED TO ENGAGE IN THE BUSINESS OF BUYING, SELLING AND TRADING ANIMALS ( LIVESTOCK )?\\nNavajo Tribal Code, Title 5, Sec. 2301 (a) authorizes the Advisory Committee of the Navajo Tribal Council to negotiate and grant leases of, and permits and licenses for the use of tribal lands for all business purposes, now or hereafter authorized by law and upon such terms and conditions as in the discretion of the Advisory Committee are deemed in the best interests of the Navajo Tribe.\\nThe above law clearly indicates that in order to do business on Navajo Tribal land a license is required, and without a license a business is operated illegally.\\nDefendant Litson has been illegally operating a business on the Navajo Reservation by trading, selling and buying livestock without a written license from the Advisory Committee of the Navajo Tribal Council.\\nJUDGMENT\\nBased upon the following findings of facts and the opinion of the court, the following order is hereby entered: 1\\n1. The (1) sorrel stud Shetland with state brand on LHH is not the livestock of Nelson and Henry Jesus, and therefore it was sold to respondent Litson unlawfully, and further since no claim has been made on this animal, the owner is unknown, therefore said (1) sorrel stud Shetland is hereby forfeited to the Navajo Nation.\\n2. Since the Court is in doubt as to the ownership of (1) bay gelding with no brand, (1) black mare with no brand, and (1) bay stud colt with no brand, they are hereby forfeited to the Navajo Nation.\\n3. It is further ordered that the fees incurred in impounding and retaining these animals will be borne by the Navajo Nation.\"}"

navajo_nation/3549437.json

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+"{\"id\": \"3549437\", \"name\": \"Nishi GENE, et al. Plaintiffs/Appellees vs. Rufina HALLIFAX Defendant/Appellant\", \"name_abbreviation\": \"Gene v. Hallifax\", \"decision_date\": \"2000-04-05\", \"docket_number\": \"No. SC-CV-71-98\", \"first_page\": 20, \"last_page\": 28, \"citations\": \"8 Navajo Rptr. 20\", \"volume\": \"8\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T20:43:13.248111+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before YAZZIE, Chief Justice, AUSTIN, and SLOAN (sitting by designation), Associate Justices.\", \"parties\": \"Nishi GENE, et al. Plaintiffs/Appellees vs. Rufina HALLIFAX Defendant/Appellant\", \"head_matter\": \"Nishi GENE, et al. Plaintiffs/Appellees vs. Rufina HALLIFAX Defendant/Appellant\\nIn the Supreme Court of the Navajo Nation\\nNo. SC-CV-71-98\\nApril 5, 2000\\nAnthony F. Little, Esq., Albuquerque, New Mexico, for the Defendant/Appellant;\\nSamuel Pete, Esq., Shiprock, Navajo Nation (New Mexico), and F.D. Moeller, Esq., Farmington, New Mexico, for the Plaintiffs/Appellees.\\nBefore YAZZIE, Chief Justice, AUSTIN, and SLOAN (sitting by designation), Associate Justices.\", \"word_count\": \"2846\", \"char_count\": \"17505\", \"text\": \"Opinion delivered by\\nAUSTIN, Associate Justice.\\nThis is an appeal of a September 5,1998 declaratory judgment and injunction by the Window Rock Family Court which declared interests in life insurance proceeds and directed payment of the proceeds to Nishi Gene for the benefit of the insured's minor children.\\nI\\nThis case is about a dispute between the children of a decedent, acting through their paternal grandmother, Nishi Gene, and the designated beneficiary of a Navajo Nation employee life insurance policy, Rufina Hallifax (\\\"Hallifax\\\"). Hallifax, the defendant in the family court and appellant herein, and Hoskie Gene Jr. (\\\"Gene\\\"), the decedent, began an intimate relationship in late 1986 and started living together in summer 1987, while Gene was a student at the ITT School of Technology in Phoenix, Arizona. Gene was an enrolled Navajo, and Hallifax is a non-Navajo Hispanic woman. Gene and his wife were separated sometime thereafter. In 1990, Gene, accompanied by Hallifax, returned to his traditional home area at Forest Lakes, Navajo Nation (Arizona), where the couple and Gene's children moved into a Navajo Housing Authority rental house. In January 1992, Gene was divorced from his spouse and received custody of the five children of the marriage. After the divorce, Gene, Hallifax, and the children moved to Pinon, Navajo Nation (Arizona) and leased a rental house from the Navajo Housing Authority, qualifying as a \\\"family.\\\"\\nIn 1993, Gene was admitted to the Navajo Nation Police Academy for training as a Navajo Nation police officer. As a police cadet, Gene was considered a Navajo Nation employee. On October 26, T993, he submitted an \\\"Application for Coverage Under the Employer's Health Care Plan\\\" to the Navajo Nation Employee Benefits Program. The application was for health insurance benefits and employee life insurance coverage under an insurance program administered by Fortis Benefits Insurance Company (\\\"Fortis\\\").\\nThe life insurance policy provided death benefits of $60,000 and a double indemnity benefit of $120,000 in the event of accidental death. Gene completed the policy in his own hand. He indicated that he was single and he listed four of his five children as \\\"dependents to be covered.\\\" A fifth child and Hallifax's daughter from a prior marriage were added later. The space for \\\"spouse\\\" under the dependents section was left blank. He checked the box for employee life insurance coverage, indicating he wanted that coverage. One section of the form asked for the given name of the \\\"beneficiary, \\\" and Gene filled in the name \\\"Rufina Hallifax.\\\" The next box asked for the relationship of the beneficiary to the employee, and Gene wrote \\\"FREIND\\\" [sic]. Gene did not change his designation of Hallifax as his beneficiary when he later added the other two children as his dependents.\\nGene graduated from the Navajo Nation Police Academy and became a police officer in February 1994. He continued to live at Pinon with Hallifax and the children until he was assigned to police duties out of Shonto, Navajo Nation (Arizona), which is beyond easy commuting distance from Pinon. Gene leased an apartment in Shonto, while Hallifax and the children continued to live in the Navajo Housing Authority unit in Pinon.\\nDuring this period of time, Hallifax cared for Gene's five children. For purposes of the children's medical treatment at an Indian Health Service facility and enrollment in school, Hallifax was listed as a \\\"stepmother,\\\" \\\"custodian,\\\" \\\"legal guardian,\\\" \\\"mother,\\\" 'parent\\\" or \\\"parent/guardian\\\" of the children. The couple and the children described themselves as a \\\"family\\\" for purposes of occupancy of Navajo Housing Authority units. Hallifax cared for Gene's children and had physical custody of them during his absence from the home to perform duties as a police officer.\\nOn January 5,1996, Gene was killed in the line of duty between Shonto and Inscription House, Navajo Nation (Arizona). When Hallifax and Nishi Gene went to the Navajo Nation Employee Benefits Program office to look into employee benefits, they learned that Gene had designated Hallifax as the beneficiary of his life insurance policy. Fortis prepared to pay Hallifax the double indemnity benefit when Nishi Gene began this declaratory judgment and injunction action to prevent payment of the life insurance proceeds to her. Fortis commenced a separate interpleader action to deposit the life insurance proceeds into court and removed itself from the dispute between Nishi Gene and Hallifax.\\nNishi Gene took physical custody of the five children and later sought guardianship of them. She applied for and received $60,000 in death benefits for the children under the Navajo Nation Worker's Compensation Program, and approximately $2,000 per month Supplemental Security Income for the children until they reach the age of majority. She also applied for a $130,000 award from a United States Department of Justice program for survivors of police officers who are killed in the line of duty.\\nAt a trial held on June 2,1998, the Window Rock Family Court placed the burden of proof upon Hallifax to prove that the insurance contract was valid, particularly with respect to the beneficiary designation. The court concluded that Hallifax failed to meet her burden of proof. The court then found that the application for insurance coverage that Gene had filled out was incomplete and ambiguous \\\"only with regard to the designation of a beneficiary.\\\" The court also found that it was \\\"questionable\\\" whether Gene intended that Hallifax should receive the life insurance proceeds. The rest of the application was presumably a valid contract because Gene's dependents had received medical benefits under it. The family court did not make findings of fact to support its legal conclusion that the beneficiary designation was either incomplete or ambiguous or that Gene intended otherwise than what he put in his application.\\nAfter finding the beneficiary designation in the application and the resulting contract vague, the court received extrinsic evidence on the relationship of Gene and Hallifax. The family court found that the couple was not married and that they had \\\"no meaningful relationship\\\" because the intimate relationship had terminated prior to Gene's death. The court then resorted to Navajo common law to distribute the insurance proceeds.\\nThe family court awarded the life insurance proceeds to Nishi Gene for the benefit of the surviving children as heirs of Gene's estate by applying the Navajo common law principles that children are central to Navajo life, that there is preference for their support, and that the children of a decedent \\\"should not be forgotten.\\\" The family court declared that, as a matter of law, Hallifax was not entitled to the insurance proceeds and enjoined her from receipt of the insurance benefits. The court also directed Nishi Gene to pay Gene's funeral expenses of $7,697.35; that order is not disputed on appeal.\\nII\\nUpon a review of the family court's final judgment and the arguments of the parties, this Court finds that the only dispositive issue on appeal is whether the family court was correct, as a matter of law, that the beneficiary designation on the insurance application was \\\"vague\\\" or \\\"ambiguous,\\\" and accordingly that Gene did not intend or could not have intended that Hallifax should be the beneficiary of the employee life insurance proceeds. The family court correctly approached the problem of insurance coverage by first construing the terms of the policy using the application before receiving extrinsic evidence of Gene's intent, to be determined from an analysis of the relationship and the conduct of the couple toward each other. However, the family court erred by placing the burden of proof on intent in the application upon Hallifax, rather than Nishi Gene and the children, and by concluding that the application was in fact vague or ambiguous and that it did not reflect the obvious intent of Gene. Accordingly, the family court erred when it proceeded to receive extrinsic evidence of Gene's intent, measured by his relationship with Hallifax, and when it applied Navajo common law child preference policies after finding that there was no \\\"meaningful relationship\\\" between Gene and Hallifax at the time of Gene's death. It also erred when it failed to make findings of fact to support the legal conclusion that the application was vague or ambiguous. We do not see an \\\"incomplete\\\" portion of the application.\\nA\\nWhile this Court has been invited to apply Navajo common law principles to this domestic relations case, we must first do a standard contract analysis, given the existence of an insurance contract. While the definition of insurance is not settled, and the question of what it may be can differ depending upon the context of a given case, we are comfortable in concluding that \\\"[a]n insurance contract generally involves an agreement by which one party (usually identified as an insurer) is committed to do something which is of value for another party (usually identified as an insured or beneficiary) upon the occurrence of some specified contingency.\\\" R. KEETON 8r A. WIDISS, INSURANCE LAW \\u00a7 i.i(b) (1988). In the context of this case, Fortis is the \\\"insurer\\\" which was committed to do something of value, Gene was the insured, and Hallifax was the beneficiary named in the application. The parties agree that the only relevant document was the application for insurance that Gene filled out on October 26,1993.\\nInsurance is a contract, Benalli v. First Nat'l. Ins. Co. of America, 7 Nav. R. 239, 334 (Nav. Sup. Ct. 1998), and basic contract principles must be used to interpret such a contract. In this particular case, the application for insurance is relevant to find Gene's intentions as an applicant for insurance, and Fortis' understandings when accepting the application. A great deal of contract interpretation involving insurance coverage is governed by insurance industry trade practices, and generally, an insurance application is an offer to make an insurance contract which must be accepted by the insurer before there is a contract. R. KEETON & A, WIDISS 2.1(c). While the insurer's acceptance of the insurance application offer is usually done by delivery of an insurance policy, id. \\u00a7 2.1(c) (3), that is not required here.\\nIn this particular case, there is no dispute that there was an insurance contract; the parties are at issue over what it means. Gene, Hallifax, and the children all received health insurance benefits that flowed from the insurance contract which was the product of the application, so the only dispute is over the meaning and scope of the term \\\"beneficiary\\\" in the contract.\\nThis Court previously handled an insurance claim alleging ambiguity in the terms of the insurance policy. We said that whether or not there is an ambiguity depends upon \\\"what the parties intended the contractual language to mean.\\\" Benalli, 7 Nav. R. 335. In this case, the parties are Gene, as an applicant for insurance coverage, and Fortis, as the insurer which accepted the application. Accordingly, we must first look at the relevant documents which indicate whether the parties had a \\\"meeting of the minds,\\\" Hood v. Bordy, 6 Nav. R. 349 (Nav. Sup. Ct. 1991), on the meaning of \\\"beneficiary.\\\" A beneficiary is \\\"[t]he person entitled to take proceeds on death of insured.\\\" BLACK'S LAW DICTIONARY 157 (6th ed. 1990).\\nNishi Gene would have this Court interpret the application using a microscope. She points to the application form's title as one for health care only; she focuses upon the lack of a named spouse; she says that we do not know what Gene meant when he ticked off \\\"dependent life\\\" as separate coverage; and the form does not connect the checkoff box \\\"Employee life\\\" with the term \\\"beneficiary.\\\" Nishi Gene's approach ignores the standard canon of construction that a court must read a document between its four corners, or examine a document as a whole to find the intent of the contracting parties. In an insurance context, a court may need to review several documents, but that is not necessary here.\\nGene was not an unsophisticated insurance applicant. He went to the Navajo Nation Employee Benefits Program office as an employee fairly fresh from Phoenix ITT School of Technology. There is no indication in the record that he had any problems reading or speaking standard English. The term \\\"beneficiary\\\" is not a mysterious one, and the insurance application form makes a clear distinction between the \\\"dependents to be covered (the children)\\\" and the \\\"beneficiary.\\\" It is clear that Gene intended for Hallifax to be the beneficiary of his life insurance policy. He wrote Hallifax's name in the \\\"beneficiary\\\" box of the policy application, and he described their relationship in the adjacent box.\\nThe test for ambiguity in this case is whether the parties to the insurance contract reached a meeting of the minds on what the term beneficiary meant. When Gene reached the space on the form which used that term, he wrote in the name \\\"Rufina Hallifax,\\\" and then he indicated his relationship with her. Gene made an offer to Fortis to form a contract which included life insurance and Fortis clearly accepted the offer with Hallifax as the intended beneficiary. We see the acceptance in an indication under the section, \\\"For Company Use Only,\\\" that the application was processed, and thus accepted, on October 29,1993. Moreover, the fact certain health insurance benefits were paid out is further proof that the application was processed and accepted.\\nB\\nThe family court erred in placing the burden of proof upon Hallifax to prove that she was the intended beneficiary of the life insurance policy when she was clearly indicated as the named beneficiary. \\\"Normally the burdens of proof and persuasion are placed on the party asserting a claim or defense.\\\" R. KEETON 8r A. WIDISS \\u00a7 72 e 2 ii. In this case, the acceptance of Gene's application raised a presumption that there was a valid contract of insurance with Hallifax as the named beneficiary. Fortis accepted Hallifax's claim to the insurance proceeds and was prepared to pay her the benefits when Nishi Gene challenged that determination by filing this action. Therefore, Nishi Gene, as the person asserting a claim to the proceeds, had the burden of proving to the family court that the policy term as to the beneficiary was vague or that Hallifax was otherwise not entitled to the insurance proceeds.\\nNext, the family court found that there was no \\\"meaningful relationship\\\" between Gene and Hallifax at the time of Gene's passing. On that basis, the family court concluded that Hallifax did not have an \\\"insurable interest\\\" in Gene's life or property, and thus, could not claim the insurance proceeds.\\nThe insurable interest doctrine provides that in general, the beneficiary of an insurance policy must have some interest in or relationship to the thing or person being insured. See Mutual Savings Life Ins. Co. v. Noah, 282 So.2d 271 (Ala. 1973). However, the general rule does not apply when a person procures a policy insuring his or her own life and pays the premiums for the policy. See id. In such cases, the insured is said to have an unlimited insurable interest in his or her own life, and, absent statutory restrictions to the contrary, may designate any person as the beneficiary of the policy. See id. The beneficiary need not have any particular relationship to the insured.\\nIn this case, there is no insurable interest problem. Gene procured the life insurance policy for himself and the premiums were paid out of his employment salary. Further, the Navajo Nation Code does not restrict the class of persons who can he named as beneficiaries in life insurance policies. Accordingly, Gene was permitted to name anyone, including Hallifax, as his beneficiary.\\nThe question in insurance cases is the intent of the insured, and Nishi Gene did not affirmatively show that the decedent's intention was other than what he stated in the application for insurance. As a general matter, Navajo Nation employees who name beneficiaries in a wide range of relationships should feel free to make their own free choice, so long as the choice is consistent with law and public policy.\\nUpon the foregoing considerations, the September 5,1998 judgment of the Window Rock Family Court is reversed and this cause remanded to that court for entry of an order awarding the life insurance proceeds to Rufina Hallifax.\\nThe family court exercised its discretion to merge an intestate estate distribution and estate claim with the declaratory judgment and injunction action before it. We do not know if there was a separate intestate probate action.\\nFortis responded in a separate action by depositing the Insurance proceeds Into family court for Nishi Gene and Hallifax to contest.\\nWe note that Apache v. Republic Nat'l Life Ins. Co., 3 Nav. R. 250 (W. R. Dist. Ct., 1982), is distinguishable from this case, and therefore, does not control our conclusions here.\"}"

navajo_nation/3549451.json

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+"{\"id\": \"3549451\", \"name\": \"THE NAVAJO NATION Plaintiff vs. Jesse BOONE Defendant\", \"name_abbreviation\": \"Navajo Nation v. Boone\", \"decision_date\": \"2002-03-04\", \"docket_number\": \"No. KY-PC-012-03; No. KY-CR-712-02\", \"first_page\": 777, \"last_page\": 779, \"citations\": \"8 Navajo Rptr. 777\", \"volume\": \"8\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation District Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T20:43:13.248111+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE NAVAJO NATION Plaintiff vs. Jesse BOONE Defendant\", \"head_matter\": \"THE NAVAJO NATION Plaintiff vs. Jesse BOONE Defendant\\nIn the District Court of the Navajo Nation Judicial District of Kayenta Arizona\\nNo. KY-PC-012-03\\nNo. KY-CR-712-02\\nRe:\\nMarch 4, 2002\", \"word_count\": \"549\", \"char_count\": \"3494\", \"text\": \"ORDER\\nThis Matter comes before the court upon the Peacemaking Division's request to incorporate a Peacemaking Agreement into a binding Order. The Court having reviewed the request FINDS that:\\n1. This court has personal and subject matter jurisdiction over the party and the matter herein.\\n2. On August 28, 2002, the Navajo Nation charged above-named Defendant with the offense of Criminal Nuisance in violation of Title 17, \\u00a7486(A)(2) of the Navajo Nation Code. The complaint alleged that Mr. Boone knowingly maintains his place of residence for purposes of engaging in unlawful conduct including openly consuming intoxicating liquor resulting in fights.\\n3. On January 22,2003, Mr. Boone pleaded guilty and the Court transferred the matter to the Peacemaking Division to recommend sentence of n\\u00e1ly\\u00e9\\u00e9h. The court required the attendance of the Criminal Investigations Department, Public Department, and Probation and Parole Services.\\n4. On February 25, 2002, Peacemaker Kent Greymountain facilitated a peacemaking session involving above-named Defendant (In the Matter of Peacemaking of Jesse Boone, Case # KY-PC-012-2003). The departments were all present. The Peacemaker found that:\\na. Mr. Boone has a homesite lease within the Kayenta Township\\nb. Mr. Boone has been known to sell liquor and allow drunks to pass-out and cause disturbance at his house.\\nc. Mr. Boone is in a wheelchair.\\nd. Mr. Boone refuses help from Human Services.\\nThe Peacemaker further recommended that:\\na. Public Safety assist Mr. Boone by providing security checks at Mr. Boone's residence.\\nb. Mr. Boone get assessed and evaluated by Counseling Service\\nc. Mr. Boone attend counseling as recommended by Counseling Service.\\nd. Navajo Nation Social Services provide Mr. Boone transportation to and from counseling.\\ne. Navajo Nation Social Services identify an individual to provide Mr. Boone with homecare.\\nf. Mr. Boone continue with traditional ceremonies.\\ng. A review hearing be held in six (6) months for a status report.\\nh. Mr. Boone's homesite lease remain in effect pending the status review in six (6) months.\\nThe parties agreed that these recommendation should be made into a binding Order.\\n5. The Court finds good cause that the Peacemaker's recommendations should be made into a binding Order.\\nIT IS THEREFORE ORDERED Peacemaker's request is hereby GRANTED.\\nIT IS FURTHER ORDERED that Jesse Boone shall undergo assessment evaluation by Counseling Services for counseling needed.\\nIT IS FURTHER ORDERED that Mr. Boone shall attend any and all counseling recommended by Counseling Services.\\nIT IS FURTHER ORDERED that the Navajo Division of Social Services shall provide transportation for Mr. Boone to and from counseling.\\nIT IS FURTHER ORDERED that the Navajo Division of Social Services will provide home care for Mr. Boone.\\nIT IS FURTHER ORDERED that the Navajo Nation Police Department shall make daily security checks at Mr. Boone's residence.\\nIT IS FURTHER ORDERED that the Clerk of the Court shall schedule a review status hearing in six (6) month to review Mr. Boone's progress.\\nIT IS FURTHER ORDERED that Mr. Boone's homesite will be kept in effect pending the status review session.\\nIT IS FINALLY ORDERED that Mr. Boone shall continue to utilize traditional healing ceremonies as a part of his rehabilitation treatment.\"}"

navajo_nation/3550036.json

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+"{\"id\": \"3550036\", \"name\": \"Carole ERIACHO Petitioner vs. RAMAH DISTRICT COURT Respondent and concerning Navajo Nation Real Party in Interest\", \"name_abbreviation\": \"Eriacho v. Ramah District Court\", \"decision_date\": \"2005-01-05\", \"docket_number\": \"No. SC-CV-61-04\", \"first_page\": 617, \"last_page\": 627, \"citations\": \"8 Navajo Rptr. 617\", \"volume\": \"8\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T20:43:13.248111+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before FERGUSON, Acting Chief Justice, and BEDONIE, Associate Justice.\", \"parties\": \"Carole ERIACHO Petitioner vs. RAMAH DISTRICT COURT Respondent and concerning Navajo Nation Real Party in Interest\", \"head_matter\": \"Carole ERIACHO Petitioner vs. RAMAH DISTRICT COURT Respondent and concerning Navajo Nation Real Party in Interest\\nIn the Supreme Court of the Navajo Nation\\nNo. SC-CV-61-04\\nJanuary 5, 2005\\nBernadine Martin, Esq., Gallup, New Mexico, for Petitioner.\\nPatrick Dooley, Esq., Crownpoint, Navajo Nation, for Respondent.\\nLaVonne Tsosie, Esq., Ramah, Navajo Nation, for Real Party in Interest.\\nBefore FERGUSON, Acting Chief Justice, and BEDONIE, Associate Justice.\", \"word_count\": \"2611\", \"char_count\": \"15439\", \"text\": \"Opinion delivered by\\nFERGUSON, Acting Chief Justice.\\nThis Court previously issued an opinion on a preliminary matter in this case. We now decide the merits by granting the writ of mandamus against the Ramah District Court to require it to grant a jury trial.\\nI\\nThe relevant facts are as follows. Petitioner Eriacho (Eriacho) is a defendant in a pending criminal action in Ramah District Court. The court did not arraign Eriacho, but instead Eriacho signed a waiver of arraignment form provided by the Chief Prosecutor (Prosecutor) of the Ramah Office of the Prosecutor. According to the parties, Eriacho went to the Office of the Prosecutor and told the Prosecutor that she did not want to appear at arraignment. The Prosecutor gave her a form apparently used by the Respondent Ramah District Court to record waivers of arraignment. Eriacho signed the form and submitted it to the Ramah District Court, which accepted the waiver.\\nThe form itself lists several rights of the defendant which correspond to the rights required to be read to the defendant at arraignment under Rule 12(c) of the Navajo Rules of Criminal Procedure (Nav. R. Civ. P.). Among these rights is the right to trial by jury. Nav. R. Civ. P. i2(c)(5)(vi). The form states that a defendant has a \\\"right to a jury trial before the judge.\\\"\\nSeveral months after waiving arraignment, Eriacho requested a jury trial. Eriacho signed her arraignment waiver on February 27, 2004. She first requested a jury trial on June 7, 2004. The Ramah District Court denied her request based on Rule 13(a) of the Navajo Rules of Criminal Procedure (NRCRP). That rule states that \\\"[t]he defendant may demand a jury trial at the time of the arraignment or within 15 days thereafter or it will be deemed waived.\\\"\\nAfter Eriacho requested and the Ramah District Court denied reconsideration of the original order, she filed a petition for a writ of mandamus. We issued an alternative writ staying the case, and requested briefs from the Ramah District Court and the Navajo Nation as Real Party in Interest. In a previous opinion we held that the Ramah District Court's staff attorney was the appropriate counsel for the Respondent in this case. We then held oral argument, and now issue this opinion.\\nII\\nThe issue in this case is whether Petitioner waived her right to a jury trial by not requesting one within the time required by the Navajo Rules of Criminal Procedure.\\nIll\\nA\\nWe have jurisdiction to issue a writ of mandamus under our authority to issue \\\"any writs or orders [n]ecessary and proper to the complete exercise of [our] jurisdiction.\\\" 7 N.N.C. \\u00a7 303(A). This Court will issue a writ of mandamus against a court to compel a judge to perform a judicial duty required by law, if there is no plain, speedy and adequate remedy at law. Duncan v. Shiprock District Court, 8 Nav. R. 581, 587 (Nav. Sup. Ct. 2004). The petitioner must show that (1) he or she has a legal right to have the particular act performed; (2) the judge has a legal duty to perform that act; and (3) the judge failed or neglected to perform the act. Id. Here the Ramah District Court already rejected Eriacho's motion for reconsideration, and denial of a jury trial is not a \\\"final\\\" order for appeal. Id. Therefore there is no plain, speedy and adequate remedy. The question is whether the court was required to grant a jury trial.\\nB\\nEriacho argues as a threshold issue that NRCRP 13(a) is invalid on its face because it improperly restricts her right to trial by jury recognized by the Navajo Bill of Rights and the Indian Civil Rights Act. A jury trial is a fundamental right in the Navajo Nation. A jury is a modern manifestation of the Navajo principle of participatory democracy in which the community talks out disputes and makes a collective decision. See Duncan, 8 Nav. R. at 592. As a deeply-seeded part of Navajo collective identity, we construe restrictions on the right to a jury trial narrowly. Id. at 592-93\\nThe Navajo Nation Council and the United States Congress have limited the right to a trial by jury by requiring a Navajo criminal defendant to affirmatively request one. The Navajo Bill of Rights provision states that \\\"[n]o person accused of an offense punishable by imprisonment .shall be denied the right, upon request, to a trial by jury of not less than six (6) persons.\\\" 1 N.N.C. \\u00a77 (emphasis added). The Indian Civil Rights Act similarly states that an Indian tribe shall not \\\"deny to any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury of not less than six persons.\\\" 25 U.S.C. \\u00a71302(10) (emphasis added). Unlike the equivalent federal constitutional right under the Sixth Amendment, there is no automatic right to a trial by jury, as the defendant may waive the right by failing to request it. The initial question is whether Rule 13(a) improperly sets a time limit on the right to request a jury trial, or, at the very least, sets an unreasonably short time period in which to assert the right.\\nA court rule may require a defendant to affirmatively request a jury trial within a specific time period. We have recognized the ability of a defendant to waive a fundamental right. Stanley v. Navajo Nation, 6 Nav. R 284, 289 (1990). As a matter of due process, however, the waiver must be a \\\"knowing, [and] intelligent act[] done with sufficient awareness of the relevant circumstances and likely consequences.\\\" Id. Rule 13(a) acts as a waiver of the defendant's right to request a jury trial by requiring the defendant to file his or her request within about two weeks after arraignment. The rule interprets the defendant's failure to act within the time period as an affirmative waiver. We see nothing in the Navajo Bill of Rights or the Indian Civil Rights Act that prohibits the courts from interpreting inaction within a specific period of time as a knowing and intelligent decision not to request a jury trial. Failure to act can be a waiver, and interpreting the failure to act after a certain time period to he a waiver is not prohibited.\\nThe time limitation serves important purposes that necessarily impact the right to request a jury trial. Both the Navajo Bill of Rights and the Indian Civil Rights Act require an affirmative request based on the realities of tribal court practice. For the smooth and efficient management of the expanding dockets of the Navajo courts, there must be a time limit beyond which the right to a jury trial is deemed waived. The process to select a jury within the Navajo Nation is lengthy and costly for under-funded courts. See NRCRP 34-36. If the right to request a jury trial had no time limit, a defendant conceivably could request a jury in the middle of the trial, causing significant delay in the individual case, and considerable shifts in the court's calendar, pushing other cases back while the court selects and prepares the jury. Unlike civil litigants, criminal defendants have a separate right to a speedy trial that may be violated by such necessary delays. 1 N.N.C. \\u00a7 7; 25 U.S.C. \\u00a7 1302(6); see Navajo Nation v. McDonald, 7 Nav. R. 1, 11 (1992) (discussing speedy trial right). Also, as with other pre-trial requests, fairness to the other party to the litigation, both in civil and criminal cases, mandates that there be a smooth and predictable process leading up to trial. Under these reasons, the establishment of a time limit to assert a jury trial is not, in itself, improper.\\nThe specific time period, fifteen (15) days from arraignment, is not unreasonably short. While this time period is shorter than the time period provided civil litigants, see Navajo Rules of Civil Procedure 38(b) (allowing request up to time the court issues notice of hearing), it is not too short given the right to a speedy criminal trial and the other considerations discussed above. The rule allows a full two weeks from arraignment (or its functional equivalent) to submit a request, giving the defendant ample time to consider his or her options and inform the court of his or her election of a trial by jury. The only remaining question is whether Eriacho's waiver in this case was otherwise \\\"knowing and intelligent.\\\"\\nC\\nAs discussed above, as a matter of due process, a defendant's waiver of a fundamental right such as the right to a jury trial must be \\\"knowing and intelligent.\\\" This test comes from the U.S. Supreme Court's interpretation of the equivalent right to due process under the United States Constitution. See Stanley, 6 Nav. R. at 289 (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). Though we originally adopted that standard without reference to Navajo Common Law, we reiterate that standard as consistent with Navajo principles of due process under the Navajo Bill of Rights.\\nWe expand on our previous statement in Stanley by requiring meaningful notice and explanation of the right to request a jury trial before we will recognize the failure to request the jury trial as \\\"knowing and intelligent.\\\" In Navajo Nation v. Rodriguez we recently interpreted a similar waiver of fundamental rights under Navajo Common Law. 8 Nav. R. 604, 614-16 (Nav. Sup. Ct. 2004). We adopted the federal Miranda standard as consistent with the Common Law interpretation of the Navajo Bill of Rights to judge the validity of a waiver of the right against self-incrimination and an attorney while in police custody. Id. at 614. However, we broadened the requirements under Navajo law by requiring meaningful notice and explanation of those rights under the Common Law principle of hazho'\\u00f3go. Id. at 615-16.\\nWe interpreted hazho'\\u00f3go as mandating more than the mere provision of an English form stating certain rights. Id. We stated that hazho'\\u00f3go requires a patient, respectful discussion with a suspect explaining his or her rights before a waiver is effective. Id.\\nAs hazho'\\u00f3go requires meaningful notice and explanation of a right before a waiver of that right is effective, it requires, at a bare minimum, that the Nation give notice that the right to a jury trial may be waived by inaction. For notice to be meaningful, and therefore a waiver to be effective, the Navajo government must explain to the defendant that the jury trial right is not absolute, as it may be waived by doing nothing within a certain time. Absent this explanation, the information received by a defendant is incomplete, as it appears the right is automatic and perpetual, like the federal constitutional right. Without this information, the waiver by inaction is not truly knowing and intelligent, and would violate the defendant's right to due process. As the description of the right to jury trial in the waiver of arraignment form does not include a statement that the right must he exercised within fifteen days, Eriacho's failure to request it within that time was not a knowing and intelligent waiver.\\nAt oral argument the Ramah District Court asserted that any requirement of notice of the time period would create a \\\"slippery slope\\\" by forcing a court to give notice to defendants of all procedural requirements in the Rules of Criminal Procedure. Further, according to Respondent, any notice requirement would force a district court to improperly act as the defendant's counsel at arraignment. We do not see our ruling today to apply to all time limits in the rules. Unlike mere procedural requests, the waiver of a trial by jury involves a fundamental right of the defendant requiring knowing and intelligent action to be effective under Navajo due process. Other lesser tactical decisions involve no such right, and, consequently, require no affirmative notice by the court. Further, the additional requirement that the defendant be informed of the time limit involves no improper legal \\\"advice,\\\" but merely accurately states the full scope of the right to a jury trial within the Navajo Nation to make sure any waiver is truly \\\"knowing and intelligent.\\\" The addition of several more words in an arraignment or its functional equivalent should cause no great burden on the court.\\nIV\\nBased on the above, Eriacho did not waive her right to a jury trial, and the Ramah District Court improperly denied her request. We therefore issue a permanent writ of mandamus requiring the court to grant Eriacho's request and hold a jury trial in this case.\\nThough in certain cases we have discussed due process in light of Navajo Common Law, see Attcity v. District Court for the Judicial District of Window Rock, 7 Nav. R. 227, 229-230 (2996) (discussing cases); In re Estate ofGoldtoothBegayfti, 7 Nav. R. 29, 31 (1992) (\\\"Due process is fundamental fairness in a Navajo cultural context.\\\"), in other cases, such as Stanley, we have adopted federal principles directly. In light of our recent case law interpreting ambiguous statutory language in light of Di yin Nohookaa Din\\u00e9'e Bi Beehaz'aanii (Navajo Common Law), Tso v. Navajo Housing Authority, 8 Nav. R. 548, 557 (Nav. Sup. Ct. 2004), we review the meaning of \\\"due process\\\" in the Navajo Bill of Rights consistent with Navajo Common Law principles. See Fort Defance Housing Corp.v. Lowe, 8 Nav. R. 463, 474 (Nav. Sup. Ct. 2004) (interpreting forcible entry and detainer statute consistent with due process as informed by Common Law principle of k'e). This means that we are not bound to follow previous case law that applies federal standards to our Bill of Rights without consideration of Common Law, but may review the question again in light of Navajo principles. However, we still consider federal approaches to the problem, particularly when the use of non-traditional devices such as courts, police, and jails are at issue. Rodriguez, 8 Nav. R. at 614.\\nAt oral argument, the Ramah District Court suggested that an explanation of the right to a jury trial was not necessary due to Ms. Eriacho's income, while the Navajo Nation separately suggested one was not necessary due to Eriacho's apparent education level. We reject any rule that conditions the respectful explanation of rights under Navajo due process on subjective assumptions concerning the defendant. This right exists for all defendants in our system.\\nWe note additional concerns in the process by which Eriacho waived her arraignment. At oral argument both sides discussed how the waiver came about at the Office of the Prosecutor. There was no record created by the Ramah District Court or the Office of the Prosecutor to show what Eriacho was told in addition to the defective form. As an analysis of the appropriateness of the use of arraignment waivers distributed by prosecutors and later approved by the court is not necessary to this case, we reserve comment until properly before this Court. We also reserve any question of whether the information communicated by the Prosecutor was otherwise sufficient under hazho'\\u00f3go, see Rodriguez, 8 Nav. R. at 615-16, because the lack of any written information on the effect of a failure to request a jury trial within the time period itself rendered any waiver ineffective.\"}"

navajo_nation/3550240.json

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+"{\"id\": \"3550240\", \"name\": \"Ricky SMITH Petitioner-Appellant vs. NAVAJO NATION DEPARTMENT OF HEAD START Respondent-Appellee\", \"name_abbreviation\": \"Smith v. Navajo Nation Department of Head Start\", \"decision_date\": \"2005-09-21\", \"docket_number\": \"No. SC-CV-50-04\", \"first_page\": 709, \"last_page\": 716, \"citations\": \"8 Navajo Rptr. 709\", \"volume\": \"8\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T20:43:13.248111+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before YAZZIE, Chief Justice, and FERGUSON and NESWOOD, Associate Justices.\", \"parties\": \"Ricky SMITH Petitioner-Appellant vs. NAVAJO NATION DEPARTMENT OF HEAD START Respondent-Appellee.\", \"head_matter\": \"Ricky SMITH Petitioner-Appellant vs. NAVAJO NATION DEPARTMENT OF HEAD START Respondent-Appellee.\\nIn the Supreme Court of the Navajo Nation\\nNo. SC-CV-50-04\\nSeptember 21, 2005\\nDavid Jordan, Gallup, New Mexico, for Appellant.\\nDana Bobroff, Navajo Nation Department of Justice, Window Rock, Navajo Nation, for Appellee.\\nBefore YAZZIE, Chief Justice, and FERGUSON and NESWOOD, Associate Justices.\", \"word_count\": \"1884\", \"char_count\": \"11475\", \"text\": \"An explicit rule in the Navajo Nation Personnel Policies provides that failure to call or report to a supervisor for three days will subject an employee to termination. Is such failure \\\"just cause\\\" for termination under the Navajo Preference in Employment Act? Under the circumstances of this case we affirm the Navajo Nation Labor Commission that the employee violated the rule and uphold the termination.\\nI\\nThe facts are undisputed. Appellant Smith (Smith) was a teacher for the Navajo Nation Department of Head Start in Iyanbito. Smith's wife had gall bladder surgery, requiring Smith to take care of their four children. Smith requested leave from his supervisor for three days after the surgery. His supervisor approved his leave, indicating that he should be with his family. After the three days passed, Smith did not return to work. On two occasions he failed to contact his supervisor for more than three work days to indicate he was not coming to work. The Navajo Nation Personnel Policies (Personnel Manual), which apply to Head Start employees such as Smith, require an employee to call or report to his or her supervisor directly within three consecutive working days. According to the Personnel Manual, failure to do so is grounds for termination. Based on his failure to call or report, Smith's supervisor terminated him.\\nSmith filed a complaint with the Navajo Nation Labor commission alleging he was terminated without \\\"just cause\\\" as required by the Navajo Preference in Employment Act. 25 N.N.C. \\u00a7 604(b)(8) (2995). The Labor Commission upheld the termination, concluding that he had violated the rule in the Personnel Manual on two separate occasions by failing to call or report within three days. This appeal followed. The Court held oral argument on August 30,2005 and now issues this decision.\\nII\\nThe issue in this case is whether violation of the rule set out in a personnel manual that an employee must call or report to his or her supervisor within three days is \\\"just cause\\\" for termination under the Navajo Preference in Employment Act when the alleged reasons for failing to call in was that the employee was taking care of his family during his wife's recovery from surgery and that the supervisor initially indicated at the approval of the first request for leave that the employee should be with his family.\\nIII\\nWe review decisions of the Navajo Nation Labor Commission under an \\\"abuse of discretion\\\" standard. Jackson v. BHP World Minerals, 8 Nav. R. at 568. One type of abuse is an error of law. Id. The meaning of \\\"just cause\\\" under the Navajo Preference in Employment Act is a legal conclusion which we review de novo, with no deference given to the Labor Commission. Id.\\nIV\\nAppellant casts this case as an opportunity for this Court to define \\\"just cause\\\" under the Navajo Preference in Employment Act (NPEA). The NPEA requires that employers terminate employees only for \\\"just cause.\\\" 15 N.N.C. \\u00a7 604(b)(8) (1995). Though the Navajo Nation Council clearly rejected an \\\"at-will\\\" employment system within the Navajo Nation by requiring \\\"just cause\\\" for termination, it did not define \\\"just cause\\\" for this Court to apply. Appellant advocates a definition derived from state case law defining similar phrases in statutes dealing with teachers and unemployment insurance. Appellee rejects these definitions as inapplicable to the NPEA and instead argues that violation of the Personnel Manual's explicit rule is \\\"substantial misconduct\\\" and therefore \\\"just cause.\\\"\\n\\\"Just cause\\\" cannot be defined with any precision for all cases through one test. \\\"Just cause\\\" is a broad concept that involves unique factual circumstances in each situation, and therefore must be applied based on the unique facts of each case. See Smith v. Red Mesa, Unified School District No. 27, 7 Nav. R. 135, 138 (Nav. Sup. Ct. 1995). The term describes \\\"a wide range of employer justifications for adverse actions.\\\" Dilcon Navajo Westerner/ True Value Store v. Jensen, 8 Nav. R. 28, 38 (Nav. Sup. Ct. 2000). Quoting from a general employment treatise, this Court previously described \\\"just cause\\\" as including only \\\"substantial misconduct,\\\" and not \\\"a minor neglect of duty, an excusable absence, a minor misrepresentation, rudeness, and even filing a defamation action against the employer.\\\" Many goats v. Atkinson Trading Co., 8 Nav. R.321, 337-38 (Nav. Sup. Ct. 2003) (citation omitted). Rather than attempting to define \\\"just cause\\\" through one test, there are some specific principles that can be applied uniformly to cases with common factual elements, such as, as in this case, when a personnel manual prohibits conduct and sets out termination as a consequence for violation. The Court will consider whether failure to follow a clear rule in a personnel manual that sets out termination as a consequence for failure to comply is \\\"just cause.\\\"\\nA\\nA personnel manual is a contract between employer and employee, with justifiable expectations that both employer and employee follow it to maintain harmony in the workplace. Dilcon Navajo Westerner, 8 Nav. R. at 40. Navajos take contracts very seriously, and this Court will enforce them. Words are sacred and never frivolous in Navajo thinking, Office of Navajo Labor Relations ex rel. Bailon v. Central Consolidated School District No. 22, 8 Nav. R. 501, 506 (Nav. Sup. Ct. 2004), and promises made must be fulfilled absent some compelling reason otherwise, see Allstate v. Blackgoat, 8 Nav. R. 660, 668 (Nav. Sup Ct. 2005) (prejudgment interest cap in insurance contract unenforceable as violative of Navajo public policy expressed in Common Law concept of n\\u00e1ly\\u00e9\\u00e9h). In Dilcon Navajo Westerner, this Court expected the employer to comply with the procedural requirements set out in the personnel manual, as the employee had justifiable expectations that the procedures be followed before she was terminated. See 8 Nav. R. at 40. Employers also have justifiable expectations that rules they set out in manuals be followed, so that they may maintain a predictable and orderly work environment.\\nBased on these reciprocal expectations, a rule set out clearly in a personnel manual, with notice to the employee, generally is binding, and this Court will enforce it as \\\"just cause\\\" for termination if termination is a stated consequence for non-compliance. However, not all rules in manuals are automatically enforceable. Some rules, though plain on their face, may be impossible for the employee to fulfill under the circumstances of the case, such as when an employee is physically or mentally unable to comply. Absent a stated exception for such impossibility, the Court will not enforce a rule if the employee demonstrates he or she was unable to comply. There may be some rules, though contractually agreed to, that violate the public policy of the Navajo Nation as expressed by the Council in the NPEA, see 15 N.N.C. \\u00a7 602(A) (stating purposes of the NPEA) or in Din\\u00e9bi beenahaz'danii. Cf. Blackgoat, 8 Nav. R. at 668 (pre-judgment interest cap in insurance contract unenforceable as violative of Navajo public policy expressed in Common Law concept of n\\u00e1lp\\u00e9\\u00e9h). Further, it may be that the punishment itself is so disproportionate to the offense that it contravenes Navajo public policy though the rule itself does not. Based on these principles, we set out this guidance: ordinarily a violation of a clear rule set out in a personnel manual for which termination is a result of non-compliance is \\\"just cause.\\\" However, an employee may challenge the enforcement of that rule as impossible to fulfill under the circumstances of the case or as violating Navajo public policy. We now apply these principles to this case.\\nB\\nThe relevant rule is that an employee absent from the office must call directly his or her supervisor within three days. If the employee fails to do so, he or she may be terminated. Appellant does not contest that he did not comply with the rule. Instead, Appellant argues that this rule, though reasonable, was unfairly applied in the unique circumstances of this case. His argument appears to be that the rule cannot be enforced if the reason for being absent is that he was taking care of family, a central Navajo obligation.\\nContrary to Appellant's representations, this case is not about an employer terminating an employee for taking care of his family. Appellant was not fired for that reason, but was terminated for not calling in to his supervisor for three days. Had Appellant called in, and then returned to work to find that he was fired for taking leave to care for his family, this might he a different case. Further, Appellant nowhere claims he was unable to call in due to the unavailability of a phone or other physical or mental limitations caused by taking care of his family. Absent a showing of impossibility, the only question is whether, on its face, the rule requiring a call-in within three days violates the public policy of the Navajo Nation. The Court does not think so.\\nUltimately personnel rules, such as the one in this case, seek to balance obligations employees have to their employer and obligations they have to their families and the community. No one in this case questions the obligations Appellant as a Navajo had to his family. However, Appellant failed to balance those obligations with those to his employer. The rule in this case merely requires that the employee let the employer know he or she will not be coming in- a simple requirement easy to perform, but with potentially significant consequences for the employer if not fulfilled. An employer has to find a substitute for the absent employee, whether by adding responsibilities to an existing worker or hiring a temporary new worker to accomplish what the absent employee was supposed to do. In the absence of communication by the absent employee, an employer must guess each day whether substitution is required. In the specific Head Start situation, an employee who teaches children has a greater obligation to make sure his or her employer can make necessary arrangements for a substitute, as ultimately the welfare of Navajo children, and the Head Start program as a federal fund recipient is at stake. As such, we hold that the call-in rule, in the circumstances of this case, does not violate the public policy of the Navajo Nation, and Appellant's failure to comply was \\\"just cause\\\" for termination. That he was caring for his family during the time he failed to call or report to his supervisor, absent facts showing impossibility, does not negate the neutral application of the rule.\\nV\\nBased on the above, the Court AFFIRMS the decision of the Navajo Nation Labor Commission upholding the termination.\\nThe Court takes judicial notice that \\\"just cause\\\" appeals are increasing in number. Given the twenty years experience of the Navajo Nation in implementing the NPEA, the Court suggests that the government, especially those officials who apply the NPEA provisions, provide recommendations to the Navajo Nation Council for further guidance on its intended meeting of 15 N.N.C. \\u00a7 604(b)(8).\"}"

navajo_nation/3550275.json

@@ -0,0 +1 @@
+"{\"id\": \"3550275\", \"name\": \"Patrick BENALLY, Sr. Petitioner vs. Berlita BENALLY Respondent\", \"name_abbreviation\": \"Benally v. Benally\", \"decision_date\": \"2003-12-29\", \"docket_number\": \"No. KY-FC-038-03 CV; No. KY-FC-038-03 CV\", \"first_page\": 796, \"last_page\": 807, \"citations\": \"8 Navajo Rptr. 796\", \"volume\": \"8\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Family Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T20:43:13.248111+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Patrick BENALLY, Sr. Petitioner vs. Berlita BENALLY Respondent\", \"head_matter\": \"Patrick BENALLY, Sr. Petitioner vs. Berlita BENALLY Respondent\\nIn the Family Court of the Navajo Nation Judicial District of Kayenta Arizona\\nNo. KY-FC-583-02 CV\\nNo. KY-FC-038-03 CV\\nDecember 29, 2003\", \"word_count\": \"4830\", \"char_count\": \"30579\", \"text\": \"ORDER\\nThis matter comes before the court upon a Motion for summary judgment by Ms. Berlita Benally, Respondent. The Court heard oral arguments on March rr, 2003 between Lawrence Ruzow, Counsel for Petitioner, and Dennis Glanzer, Counsel for Respondent. Having reviewed the motion, the counter-motion, the case file, other case files pertinent to this case, and being advised in the premises, the court hereby issues its Order.\\nFINDINGS\\nr. This court has personal and subject matter jurisdiction over the parties and matter herein.\\n2. This matter is a continuation of previous actions filed in the Family Court and in the Peacemaking Division. On December 15, T999, Ms. Berlita Benally filed a Petition for domestic abuse protection order against Mr. Patrick Benally. On February 15, 2000, the Honorable Leroy Bedonie granted a temporary protection order, issued a garnishment order to Mr. Patrick Benally's employer to collect child support, and transferred the case to the Peacemaking Division for the parties to work out the issues. On April 10,2000, Peacemaker Elwood Sageney facilitated a Peacemaking session in which the parties agreed to dismiss the domestic abuse court case with the following conditions:\\na. Patrick Benally will pay child support,\\nb. Patrick Benally will have open visitation with the children,\\nc. Berlita Benally will have custody of the four children, and\\nd. Patrick Benally will build a house for his children.\\nThe following day, on April ri, 2000, the court issued an order incorporating the Peacemaking agreement. A year later, Ms. Berlita Benally requested the court to clarify the child support provision in the order. The court issued an Amended Order on June 5, 2001.\\n3. Immediately after the court issued the Amended Order, Mr. Patrick Benally requested on June rr, 200T for a Peacemaking session to address the more permanent issue of divorce. (The previous proceedings only addressed domestic abuse and not divorce. Mr. Benally's petition refers to divorce.) Mr. Benally included in his petition the following issues to be addressed by Peacemaking: Restoring Ms. Benally's maiden name, visitation, and child support. On August 29, 20or, Peacemaker Analita Osif facilitated a Peacemaking session pursuant to Mr. Benally's request. The Peacemaking agreement documenting the Peacemaking session contains the following provisions:\\na. The parties' divorce by stipulation,\\nb. Patrick Benally will pay child support,\\nc. Half of the cost of the JUA House will go to Berlita Benally and children,\\nd. Patrick Benally's employment will pay medical insurance,\\nf. Patrick Benally will have open visitation with the children,\\ng. Berlita Benally will have custody of the four children,\\nh. Berlita Benally's maiden name will be restored, and\\ni. The child's name will be changed.\\nThe parties did not attempt to incorporate the Peacemaking agreement into an order.\\n4. Upon attempts to divide the JUA House equally pursuant to the Peacemaking agreement, the Peacemaking Division received a letter from the U.S. Navajo And Hopi Indian Relocation Office on October 3, 2oor. The federal office indicated that it does not have any comment regarding the Peacemaking agreement, however, that it needs a legal divorce or reconciliation to proceed with relocation.\\n5. One year later, on August T5,2002, Mr. Patrick Benally filed a Petition for divorce with the Family Court. The petition identified divorce, custody, visitation, child support, and the JUA House as issues to be resolved. On October 15,2002, Ms. Berlita Benally filed a Motion to dismiss the case for lack of jurisdiction along with other requests. Ms. Benally argued that the divorce has already been addressed by the Peacemaking agreement dated August 29, 2oor. Mr. Patrick Benally responded to the motion to dismiss arguing that the Peacemaking agreement was not incorporated into a Court order and that the Peacemaking agreement, alone, cannot be enforced. Mr. Benally further argued that the Peacemaking agreement does not have the force of law and cannot change the legal status of federal benefits. Ms. Benally replied contending that the Peacemaking agreement is valid even without it being incorporated into a court order. The court heard oral arguments on the Motion to dismiss the case on December 5, 2002. The court denied Ms. Benally's motion to dismiss the case.\\n6. Ms. Berlita Benally responded to the original petition for divorce on January 2r, 2003. Ms. Benally contended that the Peacemaking agreement dated August 29, 2001 precludes the court from hearing the issues of divorce, custody, visitation, child support, and the JUA House by virtue of the res judicata doctrine. Ms. Benally stated that the Peacemaking Division has already resolved these issues as evidenced by the Peacemaking agreement dated August 29, 2001.\\n7. On November 15, 2002, Ms. Berlita Benally filed a Petition for an order to show cause against Mr. Patrick Benally for his failure to pay child support in violation of the court's amended Order dated June 5, 2oor, and in violation of the Peacemaking agreement dated August 29, 2001. The Court docketed Ms. Benally's petition under a new docket number separate from Mr. Patrick Benally's Petition for divorce. Later, on January 28, 2003, the Court consolidated this case (the order to show cause case) with the divorce action.\\n8. On January 13, 2003, Mr. Patrick Benally filed a motion to join the State of Utah, and Support Kids, Inc, into the Order to show cause proceeding. Mr. Benally argued that Berlita Benally assigned her right to child support to Utah and Support Kids, Inc. and therefore these entities should he joined.\\n9. On February 6, 2003, Mr. Patrick Benally filed for an order compelling the Navajo Nation Division of Social Services to conduct a home study of Ms. Berlita Benally's home to help determine the issue of custody. Mr. Benally contended that the August 29, 2001 Peacemaking session did not address custody. Ms. Berlita Benally responded on March 3, 2003 to the Motion for homestudy by arguing that a change in circumstances is required to modify the Amended Order dated June 5,2001 (that gives custody of the children to Ms. Benally) and no such change in circumstances has been shown.\\n10. On February 12, 2003, Ms. Berlita Benally filed a Motion for summary judgment since the issues being raised in the divorce petition for the Court to consider have been addressed in the June n, 2001 Peacemaking session as evidenced in the Peacemaking agreement dated August 29, 2001. On February 26, 2003, Mr. Patrick Benally responded to the Motion for summary judgment arguing that the Peacemaking agreement of August 29, 2001 is not valid for enforcement because the Peacemaking Division is not legitimate and needs judges and lawyers to validate Peacemaking decisions. Mr. Benally contends that judges validate a Peacemaking agreement by ensuring that due process is afforded to the parties and that their rights are protected through the process. Mr. Benally further attests that he was coerced into making the Peacemaking agreement, that he was denied \\\"opportunity to think about what he was agreeing to\\\", that he was denied a lawyer, and that he misunderstood the value of the JUA House and the inability to pay half its value to Ms. Benally.\\n11. On March 11,2003, the court heard oral arguments on the Petition for an order to show cause, the Motion for summary judgment, and the Motion for the homestudy. Counsel for Mr. Patrick Benally argued that a genuine issue exists precluding summary judgment, and that there should be a court order accepting or denying the Peacemaking agreement dated August 29, 2001. Mr. Benally's counsel re-emphasized the party's rights. The Court granted Ms. Berlita's Motion for summary judgment and dismissed the Petition for divorce, and denied the Motion for homestudy.\\n12. \\\"A party against whom a claim... is asserted... may... move with or without supporting affidavits for summary judgment in the party's favor upon all or any part of the claim\\\" See Rule 56(b), Navajo Rules of Civil Procedure. A party opposing the motion must file affidavits, memoranda or both after the motion is made. See Rule 56(c), Id. The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See id.\\n13. The trial court may enter a judgment upon a peacemaking agreement if (1) the court has personal and subject matter jurisdiction, (2) all necessary parties have actual knowledge of the proposed judgment and agree to it or agree to submit the case to the peacemaker, (3) the judgment contains the complete agreement of the parties and there is sufficient information regarding the full agreement so future disputes will not arise, and (4) the proposed judgment is otherwise proper and enforceable. A judgment based upon the peacemaking agreement is valid if those conditions have been satisfied. See Rule 4.3, N.P.C.R., See also In re Estate of Kindle (Descheene v. Light), 2 Nav. A.R. 627 (Nav. Sup. Ct. 20or).\\n14. In November 2002, the Navajo Council passed the Fundamental Laws of Dine to start aligning the Navajo government and people with Navajo traditional laws and values since \\\"knowledge and practice of these laws are fading and the tribe is experiencing many forms of negative behavior and occurrences.\\\" 5. The Navajo Nation Council finds that \\\"the Dine 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 Dine.\\\" 'The Navajo Nation Council further finds that all elements of the government must learn, practice and educate the Dine on the values and principles of these laws; when the judge adjudicate a dispute using these fundamental laws, they should be thoroughly explained so that we can all learn;...\\\" See Amending Title 1 of the Navajo Nation Code to Recognize the Fundamental Laws of the Di\\u00f1\\u00e9. Navajo Nation Council Resolution No. CN-69-02 (November 13,2002)(emphasis added).\\nANALYSIS\\nThe summary judgment argument raised by Ms. Berlita Benally is based on the issue of the validity of the Peacemaking agreement. Rule 4.3 of the Navajo Peacemaker Court Rules, the rule of making a peacemaking agreement valid by turning it into a court order, was clear when there was no Fundamental Laws of Di\\u00f1\\u00e9. However, when the Navajo Council enacted the Fundamental Laws of Di\\u00f1\\u00e9, the force of agreements from the Peacemaking Division became an issue. After November 2002, the Navajo Judicial Branch needed to explain the direction of the Peacemaking Division as an institution emphasizing traditional Navajo laws. This is apparent in their motions regarding summary judgment. The parties cite to different rules for Peacemaking: Peacemaker Rules Of The Navajo Nation that is found within the Navajo Practice Book (T SB Publishing, Fourth Edition, 2002), and Navajo Peacemaker Court Manual (source unknown). Additionally, when this court researched rules and policies governing Peacemaking, this court found different policies governing Peacemaking in the various districts. Thus, this court is under the impression that there is no single policy for the Peacemaking Division and that there is a need to further clarify the role of Peacemaking within the Navajo Judicial System. Thus now, based on the foregoing findings, this court must decide whether a Peacemaking agreement that is not incorporated into a court order is valid and can be enforced. This court is also pressed to reconcile the role of due process and individual rights in the Peacemaking Division. If the court finds that the Peacemaking agreement must be incorporated into a court order, then the court must deny the motion for summary judgment since the issues raised by Mr. Patrick Benally (divorce, custody, child support, and visitation) are still issues to be decided by the court. That would necessitate the need for trial and judgment cannot summarily be granted. If the court finds that Peacemaking agreements are enforceable even without converting them into a court order, then the court must grant judgment summarily since the matter has already been decided.\\nIn beginning to determine Peacemaking's role in the Navajo Government, this court begins with the Fundamental Laws of Dine that was passed by the Navajo Council in November 2002. The Navajo Council passed the Fundamental Laws of Dine to start aligning the Navajo government and people with Navajo traditional laws and values since \\\"knowledge and practice of these laws are fading and the tribe is experience many forms of negative behavior and occurrences.\\\" See Amending Title 1 of the Navajo Nation Code to Recognize the Fundamental Laws of the Dine. Navajo Nation Council Resolution No. CN-69-02 (November 13,2002). The tribal government was designed mostly by federal officials dictating to tribal members. The Fundamental Laws of Dine reminds us that Navajos need to start developing their own government according to their laws, traditions, and customs. This law is a mark of Navajo autonomy.\\nAnother consideration is the United States' policy regarding Indian nations. Throughout its history, the United States Government has implemented mostly destructive and racist policies against Indian nations, including the Navajo Nation. Although scholars in Indian law purport that the federal policy for Indian nations today is self-determination, this court perceives a different view. In the United States Supreme Court's first federal Indian law case, the Court, while discussing the Doctrine of Discovery and subduing the Indians, made the following remarks:\\nThe title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. Most usually, they are incorporated with the victorious nation, and become subject or citizens of the government with which they are connected. The new and old members of society mingle with each other; the distinction between them is gradually lost, and they make one people. Where this incorporation is practicable, humanity demands, and a wise policy requires, that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connexions, and united by force to strangers.\\nWhen the conquest is complete, and the conquered inhabitants can be blended with the conquerors, or safely governed as a distinct people, public opinion, which not even the conqueror can disregard, imposes these restraints upon him; and he cannot neglect them without injury to his fame, and hazard to his power. See Johnson v. M'Intosh, 21 U. S. (8 Wheat.), 543 (1823) (emphasis added).\\nThe United States' policy for tribes today is to assimilate its members into mainstream America in accordance with Chief Justice Marshall's policy. This Court is impressed that Navajo People today are incorporating into the American melting pot, and the members of each society are mingling with each other. Today, the Navajo Nation is experiencing a rapid loss of its language due to the subordination by the American dominant society. See Deborah House, Language Shift Among the Navajos: Identity Politics And Cultural Continuity (The University of Arizona Press 2002). Whether the distinction between American society and Navajo society will be lost such that they make one people is to be seen. To this court, Navajo traditional laws and values are what make Navajos distinct from Americans. Maintaining a distinct culture is important to this court for purposes of maintaining Navajo identity, Navajo land, and Navajo resources. Those are the purposes for which the Navajo Government was created. When Navajos are no longer distinct, non-Indians will urge the federal government to dissolve its treaty obligations to the Navajos to open reserved land and resources to the public domain. The American Government today is already beginning to avoid its trust responsibility. See United States v. Navajo Nation, 537 U.S. 488, 123 S.Ct. 1079, 155 L.Ed.2d 60 (2003) (The U.S. Supreme Court avoided the Tribe's claim that the federal government violated its trust responsibility to the Tribe). In interpreting the Navajo statute emphasizing Navajo laws and values, the Fundamental Laws of Dine, this court brings these concerns regarding the federal assimilationist policy. This court assumes that the Navajo Nation Council had these concerns when the council delegates were drafting the Fundamental Laws of Dine.\\nFrom another angle, the United States Judicial Branch's policy regarding Indians today is terminating tribal governments. The most recent line of cases substantially affecting Indians have diminished tribal jurisdiction, the tribes' power to govern their own territories. For instance, see Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S. Ct. 1011, 55 L.Ed.2d 209 (1978)(Indian tribe does not have jurisdiction over non-Indians committing crime on reservation), See also Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981) (Tribes do not have civil jurisdiction over non-Indians unless there is a direct effect on the tribe, or a consensual relationship between the tribe and the non-Indian). In these recent cases, the U.S. Supreme Court suggests that tribal courts need to mirror federal and state courts to be legitimate. See Nevada v. Hicks, 533 U.S. 353, 384, 121 S.Ct. 2304, 2323, 150 L.Ed.2d 398, 423 (2001)(Souter, D., concurring)(Tribal courts need to prioritize individual rights). In the present case, Mr. Patrick Benally's contention, that this court must protect his individual rights in Peacemaking, is not directed at the tribe's governance over nonmembers, but at its self-governance (the Nation governing its own members). The court acknowledges these broader considerations in attempting to define Peacemaking's role in the Navajo government today.\\nThe role of Peacemaking is to preserve and promote the traditional Navajo laws and values of k'\\u00e9 among Navajo people as mandated by the Fundamental Laws of Di\\u00f1\\u00e9. Does this court recognize Peacemaking agreements even without a court order? To answer the pressing question, this court recognizes Peacemaking agreements even without a court order. Peacemaking agreements do not have to be incorporated into court orders to be enforceable. In this case, \\\"enforceable\\\" means being recognized by the District Court for purposes of not visiting he same issues again in a court trial and therefore rending judgment summarily.\\nPeacemakers are experts of the fundamental law of k'\\u00e9 which is central to Navajo philosophy and law. Peacemakers emphasize k'\\u00e9 as the top value in their proceedings: Proceedings center around k'\\u00e9. The law of k'\\u00e9 plays throughout Navajo society, even in the Judicial Branch of the Navajo Government. The Judges' Code of Conduct indicates, \\\"A judge should behave to everybody as if they were his or her relatives.\\\" See Canon 1, Section 3, Navajo Nation Judicial Code of Conduct (1991). Relatives are the epitome of k'\\u00e9. Thus, even judges are subject to learn k'\\u00e9. As experts of the k'\\u00e9 principle, peacemakers are legitimate, contrary to Mr. Patrick Benally's assertions. In fact, the Navajo Nation Peacemaking system is renowned throughout the nation and the world. Some argue that the Peacemaking system may address social problems better than a system based on adversity, punishment and power. SeeE.g., Gross Eric K, Evaluation and Assessment of Navajo Peacemaking (Report to U.S. Department of Justice) (1999) (Contending that upon research, Peacemaking is more effective than family court in reducing conflict within and between families and neighbors).\\nIn his response to summary judgment, Mr. Patrick Benally suggests that lawyers and judges are needed to ensure that the individual rights of parties that go through Peacemaking are not violated. In this court's view, individual rights do not belong in the Peacemaking forum for the following reasons. The Navajo Nation adopted the Navajo Bill of Rights in 1967 right before the Indian Civil Rights Act was enacted. The Navajo Government only adopted its own individual rights protections to mirror the United States Government. The Navajo Government made this move to be acknowledged by the American Government. The United States Supreme Court also indicated that a tribal self-governmental practice that reflects the tribal traditional customs and practices is not barred by rights afforded in the Indian Civil Rights Act. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S. Ct. 1670,56 L.Ed.2d 106 (1978). However, upon inquiry into individual rights, individual rights do not fit in the Navajo Peacemaking forum according to the following analysis. As a starting point, individual rights are a basic foundation of American government and society. The purpose of individual rights is to protect the individual from governmental intrusions into personal liberties. Historically, personal liberties were created to keep the government from becoming too powerful and abusive. See Glasser, Ira, Visions of Liberty: The Birth of the Bill of Rights (Arcade Publishing, 1991). Before Europeans immigrated to America, the English Crown tended to engage in abusive practices against its own English People. For E.g., See Declaration of Independence para. 2-2r (U.S. i776)(Listing some of the abusive practices committed by the King of England against the colonists). The founding fathers wanted to avoid that type of abusive government. Therefore, the founding fathers identified a set of rules that limited the government's use of power against its own people. The purpose of these rules was to protect individuals from unwarranted governmental intrusions. The founding fathers recognized the Bill of Rights and incorporated it into its governmental foundation, the Constitution. The American Government, being premised upon power, naturally evolved into a coercive government. The American Government, like its English predecessor, forcefully took life, liberty, limb, and property. This is apparent in criminal law today. The government takes away liberty by incarceration, life by capital punishment, and property by fines. (The practice of cutting off limbs is obsolete today.) Thus, the founding fathers indicated that due process shall be afforded to those whose life, liberty, and property was at stake by the government. See e.g., 5th and 14th Amendments of the U. S. Constitution (\\\".. .nor shall any state deprive any person of life, liberty, or property, without due process of law.\\\"). The due process clause became extremely important considering the adversarial and coercive nature of the American legal system. With this background, this Court asks whether individual rights fit within Peacemaking. Unlike the adversarial American legal system, where parties win and lose and the court forces its judgment, Peacemaking is not premised upon adversity nor coercion. Peacemaking is premised upon k'\\u00e9which is opposite to adversity and coercion. Peacemaking is premised upon cooperation, sharing, and helping each other. Peacemaking emphasizes maintaining positive relations by acknowledging and tending to responsibilities toward one another. Peacemaking does not focus on taking away a party's life, property, nor liberty, Even if it did, the Major Crimes Act and Indian Civil Rights Act forbids tribes from exercising capital punishment, imprisoning a person for more than five years, and imposing a fine of more than $5000. See Major Crimes Act, 18 U.S.C.A. \\u00a71153 (1885), See also Indian Civil Rights Act, 25 U.S.C. \\u00a7 1301 -1303 (r968)(amended 1986). Rather, Peacemakers focus on solving the problems brought by parties using the k'\\u00e9 principle. In the American legal system, individual rights, when used properly, protect parties. When abused, lawyers tactically use individual rights against each other to win the case and address the problem by retribution (i.e., revenge). As legal devices engineered for an adversarial coercive system, individual rights do not belong in Peacemaking because Peacemaking encourages making peace and not adversity. Peacemakers want to focus on solving the substance of the problem, rather than focusing on procedural issues for due process as in the American legal system. Because Peacemaking and the legal system are premised on different foundations, and to encourage k'\\u00e9, individual rights do not belong in Peacemaking sessions. Mr. Patrick Benally argues that judges and lawyers are needed to ensure that parties' individual rights are protected. However, since individual rights do not belong in Peacemaking according to the above-reasoning, then there is no need for a judge to check for individual rights in Peacemaking agreements. What replaces due process and individual rights if rights are prohibited in Peacemaking? The concept of k'\\u00e9 fills that void. Due process is fairness in the adversarial system. K'\\u00e9 incorporates fairness, but in the context of cooperation, sharing, and caring for each other. In caring for each other, a person treats each other fairly by giving equal treatment. Rather than favoring one person over another, all persons are treated equally under the k'\\u00e9 principle.\\nMr. Patrick Benally contests that he was pressured into the Peacemaking agreement on August 29,2001. This Court stresses that Mr. Benally requested Peacemaking himself. The Court did not order him to attend Peacemaking for divorce. Mr. Benally voluntarily sought Peacemaking on June 11, 2001. It is impossible for a person who voluntarily participates in an agreement to be coerced. If it is voluntary, then the person can disengage and discontinue participating. To the contrary, to support the child support amount set by the Court following the Navajo Nation Child Support Guidelines, Peacemaking emphasized Mr. Patrick Benally's responsibility to provide for his children as a father. Teaching about responsibility is not coercion. In fact, with the high rate of single parents on the Navajo Reservation, this court supports the encouragement of parental responsibility. This court supports the Peacemakers teaching about parental responsibility. As to the issue of coercion, this court takes judicial notice that Peacemakers operate on the k'\\u00e9 principle. Therefore, it presumes that agreements reached in Peacemaking are fair and without duress and coercion because the parties enter into agreements voluntarily.\\nOne role of Peacemaking is to preserve and promote the traditional Navajo laws and values of k'\\u00e9 among Navajo people as mandated by the Fundamental Laws of Di\\u00f1\\u00e9. When the Navajo government passed the Fundamental Laws of Di\\u00f1\\u00e9, many wondered what its effect would be on the Navajo Nation Bill of Rights, particularly when the Fundamental Laws of Dine were placed before the Navajo Nation Bill of Rights in Article x of the Navajo Nation Code. This analysis initiates defining the impact of the Fundamental Laws of Dine on the Navajo Bill of Rights, the rest of the Navajo Code, and court cases. In light of the United States' history and policies with respect to Indian nations, and the Navajo Nation being at the forefront, this court rigorously reinforces the Peacemaking Division. Thus, Peacemakers play a legitimate role in Navajo government comparable to judges. Peacemaking decisions do not have to be incorporated into a court order to be recognized and enforced in the Kayenta Judicial District. Further, individual rights may be appropriate for the adversarial legal system, but individual rights do not belong in the Peacemaking forum. Finally, there is a presumption that agreements reached in Peacemaking sessions are fair and without duress and coercion because parties participate voluntarily.\\nPursuant to Rule 56(b) of the Navajo Rules of Civil Procedure, Ms. Berlita Benally's pleadings and exhibits show that there is no genuine issue as to any material fact and that she is entitled to a recognition of the divorce made in the Peacemaking Division. Further, the Fundamental Laws of Dine recently enacted by the Navajo Council, supercedes Rule 4.3 of the Navajo Peacemaker Court Rules, which is the standard set in In re Estate of Kindle, 8 Nav. R. 150 (Nav. Sup. Ct. 2001).\\nCONCLUSIONS\\n1. Peacemaking agreements do not have to be made into a court order for them to be enforceable.\\n2. There is a presumption that agreements reached in the Peacemaking Division are fair and without duress and coercion because the parties enter into the agreements voluntarily.\\n3. Individual rights do not belong in Peacemaking because individual rights are premised upon an adversarial system contrary to Peacemaking.\\nJUDGMENT\\nBased on the foregoing, the court hereby GRANTS Ms. Berlita Benally's Motion for Summary Judgment since this matter has already been determined by the Peacemaking Division on August 29, 2001 pursuant to the analysis above. The court further recognizes the divorce rendered by the Peacemaking Division because Peacemakers are competent with k'\\u00e9principles that make Navajo laws. Thus, the Petition for divorce, along with the motions for res judicata, joinder, and homestudy are hereby DISMISSED with prejudice. The motion for order to show cause is DISMISSED without prejudice since that motion also relates to the Amended Order that was issued prior to the divorce petition. Any new issues that arise, or may have arisen, related to the Peacemaking agreement may be addressed by making a request to modify their agreement either through this court or through Peacemaking.\\nFor purposes of being consistent with the case caption, the court will refer to Berlita Chief Benally as Berlita Benally.\\nThis Order will treat Mr. Patrick Benally as the petitioner and Ms. Berlita Benally as the respondent according the first of the two consolidated cases.\"}"

navajo_nation/3550373.json

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+"{\"id\": \"3550373\", \"name\": \"Dr. Lula Mae STAGO Petitioner-Appellee vs. WIDE RUINS COMMUNITY SCHOOL, Inc. Respondent-Appellant\", \"name_abbreviation\": \"Stago v. Wide Ruins Community School, Inc.\", \"decision_date\": \"2001-05-04\", \"docket_number\": \"No. SC-CV-63-99\", \"first_page\": 118, \"last_page\": 121, \"citations\": \"8 Navajo Rptr. 118\", \"volume\": \"8\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T20:43:13.248111+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before YAZZIE, Chief Justice, and AUSTIN and MORRIS, Associate Justices.\", \"parties\": \"Dr. Lula Mae STAGO Petitioner-Appellee vs. WIDE RUINS COMMUNITY SCHOOL, Inc. Respondent-Appellant\", \"head_matter\": \"Dr. Lula Mae STAGO Petitioner-Appellee vs. WIDE RUINS COMMUNITY SCHOOL, Inc. Respondent-Appellant\\nIn the Supreme Court of the Navajo Nation\\nNo. SC-CV-63-99\\nMay 4, 2001\\nStephen K. Smith, Esq., and Howard Brown, Esq. Flagstaff, Arizona, for Appellant.\\nLawrence A. Ruzow, Esq., Window Rock, Navajo Nation (Arizona), for Appellee.\\nBefore YAZZIE, Chief Justice, and AUSTIN and MORRIS, Associate Justices.\", \"word_count\": \"1090\", \"char_count\": \"6919\", \"text\": \"Opinion delivered by\\nYazzie, Chief Justice.\\nIn December 1999, the Navajo Nation Labor Commission (\\\"Commission\\\") awarded the Appellee, Dr. Lula Mae Stago, back pay, out-of-pocket expenses, and attorney's fees upon finding that the Appellant, Wide Ruins Community School, Inc. (\\\"Wide Ruins\\\") had violated the Navajo Preference in Employment Act (\\\"NPEA\\\"). The issue before us is whether the Federal Tort Claims Act (\\\"FTCA\\\") precluded the Commission from hearing the case. We hold that under the FTCA, Wide Ruins can only be sued in federal court and thus the Commission lacked jurisdiction over Dr. Stago's claims.\\nI\\nWide Ruins' status as a tribally controlled school (or grant school) pursuant to federal law (Tribally Controlled Schools Act, 25 U.S.C. \\u00a7 2501-2511) and sanctioned as such by the Navajo Nation is not in dispute. Wide Ruins has been a tribally controlled school since February x, 1998. A tribally controlled school is \\\"a school, operated by a tribe or a tribal organization, enrolling students in kindergarten through grade 12, including preschools, which is not a local educational agency and which is not directly administered by the Bureau of Indian Affairs.\\\" 25 U.S.C. \\u00a7 2511(5).\\nIn January 1998, the school board for Wide Ruins interviewed Dr. Stago and Albert A. Yazzie for the position of executive director of Wide Ruins. According to school board guidelines, a Master's Degree in Educational Administration was required for the position, although the board might allow for such alternatives as it found \\\"appropriate and acceptable.\\\" Commission's Interim Order at 3 (August 20,1999). The board hired Mr. Yazzie for the position, although he lacked the required degree (which Dr. Stago possessed).\\nDr. Stago filed a complaint with the Commission, alleging that Wide Ruins had violated the NPEA, 15 N.N.C. \\u00a7 601 et seq., by hiring Mr. Yazzie. Specifically, Dr. Stago claimed that the school board failed to hire the best qualified Navajo for the position. The Commission agreed, and after finding that Dr. Stago had no duty to mitigate damages by accepting the higher paying position of principal, awarded her back pay and out-of-pocket expenses in the amount of $27,700, along with attorney's fees in the amount of $8,633.47. The Commission further ordered Wide Ruins to readvertise for the position of executive director. Wide Ruins appealed to this Court, contending inter alia that the Commission lacked subject matter jurisdiction over Dr. Stago's action and that the federal courts have exclusive jurisdiction. This Court first denied the appeal, but later agreed to reconsider the case. Dr. Stago cross appeals on the time period of her back pay award and the hourly rate set by the Commission for her attorney's fees.\\nII\\nA. The Federal Tort Claims Act\\nAccording to 25 U.S.C. \\u00a7 45of, Historical and Statutory Notes, \\\"an Indian tribe, tribal organization or Indian contractor\\\" acting under the Tribally Controlled Schools Act of 1988,25 U.S.C. \\u00a7 2501-25^ or the Indian Self-Determination and Education Assistance Act of 1975,25 U.S.C. \\u00a7 450 et. seq., \\\"is deemed hereafter to be part of the Bureau of Indian Affairs in the Department of the Interior or the Indian Health Service in the Department of Health and Human Services\\\" with respect to civil suits against them. Any civil claim against tribes, organizations, and contractors covered under the two Acts \\\"shall be deemed to be an action against the United States and will be defended by the Attorney General and be afforded the full protection and coverage of the Federal Tort Claims Act.\\\" Thus, Wide Ruins is part of the Bureau of Indian Affairs and it is protected by the FTCA. The United States specifically waived its sovereign immunity regarding claims against grant schools that fall under the two Acts. However, such claims must be litigated in federal district court, as Congress granted these courts \\\"exclusive jurisdiction\\\" over FTCA claims. 28 U.S.C. \\u00a7 1346(b).\\nAccording to 25 U. S.C. \\u00a7 45of, tribal organizations performing functions authorized by the Tribally Controlled Schools Act of 1988 are considered part of the Bureau of Indian Affairs. Suits against such organizations must be brought under the FTCA, as this is the only instance in which the United States has waived the sovereign immunity that would usually be accorded the Bureau of Indian Affairs in these cases. Wide Ruins is a tribal organization operating a tribally-controlled school under the Tribally controlled Schools Act. Thus, Wide Ruins can only be sued in federal court, under the FTCA. The commission therefore lacked jurisdiction over Dr. Stago's claims.\\nB. 25 U.S.C. \\u00a7 450e(c)\\nDr. Stago wants the Tribally-Controlled Schools Act construed narrowly to support the Navajo Nation's and federal government's goal of enhancing tribal sovereignty, and Congress' express authorization for use of \\\"tribal employment... preference laws.\\\" See 25 U.S.C. \\u00a7 45oe(c). This statute says:\\nNotwithstanding subsections (a) and (b) of this section [which deals with wage and labor standards and Indian preference in employment], with respect to any self-determination contract, or portion of a self-determination contract, that is intended to benefit one tribe, the tribal employment or contract preference laws adopted by such tribe shall govern with respect to the administration of the contract or portion of the contract.\\nDr. Stago also wants the FTCA construed to cover only personal injury actions against grant schools.\\nWe are not persuaded by Dr. Stago's arguments. Section 45of, Historical and Statutory Notes, explicitly states that \\\"any civil action\\\" pursuant to the Tribally Controlled Schools Act \\\"shall be deemed an action against the United States . and be afforded the full protection and coverage of the Federal Tort Claims Act.\\\" The FTCA explicitly states that \\\"any claim\\\" against a tribal organization covered by the Tribally Controlled Schools Act must be brought under the FTCA in federal court. Also, there is no evidence that Congress wanted to limit suits against grant schools to personal injury actions. We find that Dr. Stago's claims belong in federal court.\\nIll\\nBecause tribal organizations running tribally-controlled schools are considered part of the Bureau of Indian Affairs for the purpose of civil suits against them, suits against such organizations must be brought in federal court under the FTCA.\\nThe Commission's decision is therefore vacated, and Dr. Stago's case is dismissed due to lack of subject matter jurisdiction.\"}"

navajo_nation/3550470.json

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+"{\"id\": \"3550470\", \"name\": \"Julia BEGAY Petitioner-Appellee vs. Jessie Ray CHIEF Respondent-Appellant\", \"name_abbreviation\": \"Begay v. Chief\", \"decision_date\": \"2005-05-18\", \"docket_number\": \"No. SC-CV-08-03\", \"first_page\": 654, \"last_page\": 660, \"citations\": \"8 Navajo Rptr. 654\", \"volume\": \"8\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T20:43:13.248111+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before FERGUSON, Acting Chief Justice, and L. JOHNSON, Associate Justice.\", \"parties\": \"Julia BEGAY Petitioner-Appellee vs. Jessie Ray CHIEF Respondent-Appellant\", \"head_matter\": \"Julia BEGAY Petitioner-Appellee vs. Jessie Ray CHIEF Respondent-Appellant\\nIn the Supreme Court of the Navajo Nation\\nNo. SC-CV-08-03\\nMay 18, 2005\\nGenevieve K. Chato, Esq., Kayenta, Navajo Nation, for Appellant.\\nSamuel Pete, Esq., Shiprock, Navajo Nation, for Appellee.\\nBefore FERGUSON, Acting Chief Justice, and L. JOHNSON, Associate Justice.\", \"word_count\": \"1882\", \"char_count\": \"11113\", \"text\": \"This case concerns whether a person married through a traditional wedding ceremony must receive a decree by a Navajo Nation court to be validly divorced within the Navajo Nation. We hold that the Navajo Nation Code requires a divorce decree, and therefore vacate the Kayenta Family Court's decision.\\nI\\nThe relevant facts are undisputed. Appellant Jessie Ray Chief and Appellee Julia Begay are both enrolled members of the Navajo Nation. Mr. Chief married Dorothy Farland by traditional ceremony in 1978. Some time after 1978, Mr. Chief left Ms. Farland, taking his saddle and blanket from their home. Mr. Chief did not seek or receive a divorce decree from a Navajo Nation court. He subsequently married a second person, Myrtle Dayzie. They received a divorce decree from their marriage in 1985. Neither Ms. Farland nor Ms. Dayzie are parties to the case. Mr. Chief and Ms. Begay began to live together in Phoenix, Arizona in 1985. They moved to Kayenta within the Navajo Nation. They produced one child and operated several businesses together. They never had a traditional, church or civil marriage ceremony performed.\\nAfter they separated, Julia Begay filed a petition for a validation of marriage in the Kayenta Family Court, claiming a \\\"common law\\\" marriage under 9 N.N.C. \\u00a7 3(E) (1995). Jessie Ray Chief filed a motion to dismiss the petition, asserting that the court could not validate any alleged marriage, because he had never been divorced legally from Dorothy Farland. According to Mr. Chief, the Navajo Nation Code requires a divorce decree from a Navajo Nation Court for a divorce from a traditional marriage to be legal. Mr. Chief cited a decision of the Navajo Court of Appeals, In re Validation of Marriage of Slowman, 1 Nav. R. 141 (1977), asserting that it was binding precedent for the rule that a Navajo Nation court must issue a divorce decree from a traditional marriage for a court to validate a subsequent marriage.\\nThe Kayenta Family Court denied Mr. Chief's motion to dismiss, ruling that he legally divorced Dorothy Farland by Navajo custom. According to the court, the Navajo Common Law concepts of yo deyah and tse ha maz applied. Under these concepts, the court concluded that a traditional divorce occurred when Mr. Chief left with his saddle and blanket. The court ruled that no binding precedent controlled the case, alleging that Mr. Chief only cited non-binding district courts cases. The court also ruled that the provisions of the Navajo Nation Code concerning marriage and divorce are ambiguous. Therefore, according to the court, the Code did not preclude the recognition of a traditional divorce. The court then considered the merits of the case, ruling that Mr. Chief and Ms. Begay had a valid \\\"common law\\\" marriage. Mr. Chief appealed to this Court.\\nII\\nThe issue in this case is whether a person married through a traditional wedding ceremony must have received a decree by a Navajo Nation court to be legally divorced within the Navajo Nation.\\nIll\\nA\\nThe conclusion of the Kayenta Family Court that a court decree of divorce from a traditional marriage is not required is a legal one which we review de novo. Judy v. White, 8 Nav. R. 510, 528 (Nav. Sup. Ct. 2004). We give no deference to the Family Court, and review the question based on our interpretation of the relevant law.\\nB\\nThe main issue in this case is whether a court must issue a divorce decree from a traditional marriage. Mr. Chief argues that he could not have legally married Ms. Begay because he was never divorced validly from his traditional marriage to Dorothy Farland. Ms. Begay disagrees, arguing that Mr. Chief divorced Ms. Farland by Navajo custom, and therefore was not still married during the relationship at issue in this case.\\nThe question in this case involves two provisions of Title 9 of the Navajo Nation Code, Sections 4(A) and 407. Section 4(A) states that to contract a marriage within the Navajo Nation, both parties must be unmarried. 9 N.N.C. \\u00a7 4(A) (1995). When, as here, either party has been previously married, that Section requires that \\\"the marriage must have been dissolved by... a valid decree of divorce.\\\" Id. (emphasis added). Section 407, appearing in a separate chapter specifically covering divorce, states that \\\"[n]o person, married by Tribal custom, who claims to have been divorced shall be free to remarry until a certificate of divorce has been issued by the Courts of the Navajo Nation.\\\" 9 N.N.C. \\u00a7 407 (1995) (emphasis added). The Kayenta Family Court concluded that Section 4(A), passed by the Navajo Nation Council after Section 407, creates an ambiguity, because Section 407 refers to a decree issued by a court, while Section 4(A) refers only to a \\\"decree.\\\"\\nCuriously, the Kayenta Family Court did not mention our opinion in In re Validation of Marriage ofSlowman, which held that a court decree is necessary for a divorce to be valid. 1 Nav. R. 141,143 (Nav. Ct. App. 1977). In that opinion we concluded that the plain language of Section 407 requires a court decree. Id. We denied a validation of marriage because one party had never received a court decree of divorce from a previous marriage. Id. at 143-44. The Kayenta Family Court omitted Slowman from its analysis, even though Mr. Chief cited it and discussed it in a document submitted in that court. Reply to Petitioner's Objection to Respondent's Motion to Dismiss, Index Listing No. 55, at 3-4. According to the Kayenta Family Court, Mr. Chief had only cited district court cases, and that \\\"these decisions are merely persuasive.\\\" Order of February 5, 2002, Index Listing No. 75, at 7-8. Whatever the reason for the oversight, the Kayenta Family Court did not consider a potentially binding precedent from this Court. We therefore must consider it ourselves without any guidance from the Family Court.\\nD\\nThe binding effect of Slovenian depends on its reasoning. As we recently stated in Allstate Indemnity Co. v. Blackgoat, our current rules of statutory interpretation require that we interpret ambiguous language consistent with Navajo Common Law. 8 Nav. R. 636 (Nav. Sup. Ct. 2005); see also Tso v.Navajo Housing Authority, 8 Nav. R. 548, 557 (Nav. Sup. Ct. 2005). This means that a previous interpretation of statutory language is not binding if the language is unclear and if we did not consider Navajo Common Law in our analysis. See Eriacho v. Ramah District Ct., 8 Nav. R. 617, 625 n. 1 (Nav. Sup. Ct. 2005). However, we still apply a statute's plain language when that language is clear. Tso, 8 Nav. R. at 557 n. 1 (collecting cases). This means that case law stating the plain meaning of statutory language still controls the outcome of later cases. See Fort Defiance Housing Corp. v. Allen, 8 Nav. R. 492, 498-99 (Nav. Sup. Ct. 2004).\\nUnder these rules, we conclude that Slowman controls this case. Here, if there is an ambiguity, the Kayenta Family Court appropriately looked to Navajo Common Law concerning divorce. As we used a plain language analysis in Slowman, however, that holding controls. The language of Section 407 is not ambiguous, as the clear meaning of the statute means that a person must receive a court decree of divorce from a traditional marriage before he or she may marry within the Navajo Nation.\\nThis conclusion was not reached easily in this case. Though we do not condone the activities of Mr. Chief, we are bound to apply the clear and valid policy decisions of the Navajo Nation Council, as we did in Slowman twenty-eight years ago. See Tso, 8 Nav. R. at 557 n.i. This Court ultimately is not the policy-making body for the Navajo Nation. See id. Ms. Begay does not allege that the Section 407 violates a fundamental right under our Navajo Bill of Rights and Indian Civil Rights Act. Absent some suggestion that the statutory requirement for a court decree is somehow invalid, instead of merely ambiguous, we have no choice but to apply it to this case. Ms. Begay and others in her situation may seek a statutory change to allow the courts to recognize other methods of divorce.\\nIV\\nBased on the above, the Kayenta Family Court erred in validating a marriage between Ms. Begay and Mr. Chief. As Mr. Chief was never validly divorced under Navajo Nation statutory law, he cannot be married to Ms. Begay. We therefore VACATE the decision of the Family Court. We do not say that Ms. Begay lacks any valid claim against Mr. Chief. There maybe other claims that do not require a valid marriage. We leave that for the lower court to consider in a new case. This case is closed.\\nA \\\"common law\\\" marriage under the Navajo Nation Code is different than one arising out of a traditional wedding ceremony. See 9 N.N.C. \\u00a7 3(D), (E). A \\\"common law\\\" marriage is defined as a marriage, other than through the signing of a marriage license before witnesses or the performing of a church, civil, or Navajo traditional ceremony, that includes four necessary elements: r) a present intention of the parties to be husband and wife, 2) a present consent between the parties to be husband and wife, and 3) actual cohabitation, and 4) an actual holding out of the parties within their community to be married. 9 N.N.C. \\u00a7 3(E).\\nSlowman was issued by the Navajo Court of Appeals, which the Navajo Nation Council replaced in ^85 with the Navajo Nation Supreme Court. As it was the highest appellate body up to the creation of the Supreme Court, and cases pending before that court were transferred to this Court, Navajo Nation Council Resolution No. CD-94-85, Resolved Clause 4 (December 4, 1985), we apply decisions of the Court of Appeals as our own. See, e.g., Fort Defiance Housing Corp. v. Allen, 8 Nav. R. 492, 498 (Nav. Sup. Ct. 2004) (following Navajo Court of Appeals opinion concerning time for appeal in Forcible Entry and Detainer cases).\\nIn Slowman we did not explicitly refer to the \\\"plain language\\\" of the statute, hut simply said that \\\"[under]... Section [407], a divorce certificate granted by a Navajo court is specifically required even for marriages contractedby customary or traditional ceremony.\\\" r Nav. R. at 143. Absent any reference to other rules of statutory interpretation, we take our discussion in Slowman to be a plain language analysis. However, even assuming Slowman is not a plain language case, and therefore not binding, Section 407 is directly on point, and states clearly that parties who were married through a traditional ceremony must receive a court decree for any alleged divorce to be recognized. Nothing in Section 4(A) contradicts this, the only difference being that the word \\\"court\\\" does not appear before \\\"decree.\\\" The absence of \\\"court,\\\" without more, does not make the word \\\"decree\\\" unclear. When read together, the Council dearly intended that divorces must have a court decree to be valid.\"}"

navajo_nation/3550583.json

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+"{\"id\": \"3550583\", \"name\": \"Lavenna GEORGE Appellant vs. Mary TSOSIE and The Navajo Nation Appellees\", \"name_abbreviation\": \"George v. Tsosie\", \"decision_date\": \"2001-03-15\", \"docket_number\": \"No. SC-CV-30-98\", \"first_page\": 88, \"last_page\": 95, \"citations\": \"8 Navajo Rptr. 88\", \"volume\": \"8\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T20:43:13.248111+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before YAZZIE, Chief Justice, and AUSTIN and L. JOHNSON, Associate Justices.\", \"parties\": \"Lavenna GEORGE Appellant vs. Mary TSOSIE and The Navajo Nation Appellees\", \"head_matter\": \"Lavenna GEORGE Appellant vs. Mary TSOSIE and The Navajo Nation Appellees\\nIn the Supreme Court of the Navajo Nation\\nNo. SC-CV-30-98\\nMarch 15, 2001\\nScott E. Borg, Esq., Albuquerque, New Mexico, for Appellant.\\nLuke Marik, Esq., Gallup, New Mexico, for Appellees.\\nBefore YAZZIE, Chief Justice, and AUSTIN and L. JOHNSON, Associate Justices.\", \"word_count\": \"1846\", \"char_count\": \"11399\", \"text\": \"Opinion delivered\\nAustin, Associate Justice.\\nThe issue on appeal is whether an injured worker who initially filed her claim with the Navajo Nation Workers' Compensation Program, and later withdrew from the administrative process to sue in Navajo Nation district court, should be required to pursue her remedy to completion in the workers' compensation forum. We hold in the affirmative.\\nI\\nOn January ii, 1994, the Appellant, Lavenna George (\\\"George\\\"), a Navajo Nation government employee, was struck and injured by a Navajo Nation vehicle driven by Mary Tsosie, also a Navajo Nation government employee. George was crossing the street between the Ganado Senior Citizen Center, her work site, and the Ganado Chapter House to make a telephone call to her supervisor to relay a message that a co-worker: would be late for work. The center's employees used the chapter house's telephone for sending and receiving office communications because their telephones were not connected. The co-worker had earlier asked George to call in the message to their mutual supervisor. The supervisors of the senior citizen centers encouraged the employees to assist and cover for one another because of the vast distances between the sub-offices.\\nGeorge's supervisor filed a workers' compensation claim for her on January r4,1994. A claims analyst for the Navajo Nation workers' Compensation Program (\\\"Program\\\") denied George's claim on February 4,1994, ruling that her injury did not arise out of and in the course of her employment because she was on a personal errand when she was injured. On February 7,1994, George sent a letter to the Program contesting the denial and requesting a hearing before the Employee Benefits Review Board (\\\"Board\\\"). George also explained in her letter that in addition to the telephone call, she was going to the chapter house to check for the center's messages, which was part of her job. The latter fact was not included in George's original claim that was reviewed by the claims analyst. The Board set George's hearing for April 25,1994.\\nThe Program's attorney reviewed George's file and concluded that the facts supported George's claim for workers' compensation benefits. She sent a memorandum to the Program on April 19,1994, recommending reconsideration of the denial and approval of George's claim for benefits.\\nOn April 21,1994, George sent a letter to L\\u00e1veme Lee, Coordinator of the Workers' Compensation Program, stating that she wanted to \\\"drop [her] appeal\\\" to the Board because she was not prepared for the hearing. The record does not show when the claims analyst on George's case received this letter. The next day, on April 22,1994, the Program notified George by telephone that her claim had been reevaluated and approved for benefits. On April 25,1994, the day of the scheduled hearing, the Board received a letter from the Program's attorney advising that the Program had granted George's claim for benefits. The Board then dismissed George's appeal, but did not give a reason for the dismissal.\\nOn December 12,1995, George brought this negligence action in the Window Rock District Court against the Appellees, Mary Tsosie and the Navajo Nation. The Appellees moved for summary judgment arguing that the workers' compensation program had exclusive jurisdiction over George's claim, and by approving her claim for benefits, George did not have a case. In the alternative, the Appellees' argued that by withdrawing her request for a hearing before the Board, George had not exhausted her administrative remedies. George, this time, argued that she was on a personal errand at the time of the accident, therefore her claim was outside the Program's jurisdiction, and the Program should be held to its initial rejection of her claim. The district court granted summary judgment on the exhaustion issue and ordered George to exhaust her administrative remedies before the workers' compensation forum. The district court retained jurisdiction over the action pending a final decision from the administrative forum. George took an appeal from the summary judgment to this Court.\\nII\\nGeorge relies on Eldridge v. Circle K Corp., 123 N.M. 145, 934 P.2d 2074 (N.M. App. 1997), and Humana of Florida, Inc. v. McKaughan, 652 So.2d 852 (Fla. App., 2d Dist. 1995), to support her argument that the district court should have decided the issue of whether she was acting within the course and scope of her employment at the time of the accident. George claims the district court erred by not deciding the issue and sending her back to the workers' compensation forum to exhaust her remedies.\\nWe find significant differences between George's case and the Eldridge and Humana cases. In Eldridge, the claimant never invoked the jurisdiction of the workers' compensation program, and in fact insisted that the claim did not fall within the program's jurisdiction because it involved an intentional tort. The claimant's decedent had been shot and killed by a customer. The New Mexico court favored the trial court over the workers' compensation program and stressed that while the program was well-suited to make decisions on issues within its expertise, such as employment status, it had no expertise on intentional torts. 123 N.M. at 150, 934 P.2d at 1079.\\nIn the Humana case (which was later certified to the Florida Supreme Court, Florida Birth-Related Neurological Injury Compensation Ass'n. v. McKaughan, 668 So.2d 974 (1996)), the plaintiffs initially sued in the trial court on their son's behalf alleging medical malpractice. The defendants raised the exclusivity of the administrative remedy as a defense. At the trial court's urging, the plaintiffs filed a petition for benefits under the plan with the administrative forum, which they later supplemented. Their supplemental petition requested that the case be returned to the court, citing the administrative forum's lack of jurisdiction. The supplementary petition was granted. The issue of which forum would have jurisdiction to decide the matter was certified to the Florida Supreme Court. That court ultimately ruled that plaintiffs who are certain that their claims do not fall within the exclusive jurisdiction of the compensation plan are not compelled to seek a jurisdictional ruling from the administrative agency before filing a civil suit. Florida Birth-Related Neurological Injury Compensation Ass'n., 668 So.2d at 977.\\nThere is no evidence of intentional wrongdoing in George's case and she initially filed her claim with the Program. She did not allege that she was injured by the willful misconduct of a co- employee, which might have given her the option of filing initially with the district court. See T5 N.N.C. \\u00a7 ror3 (X995). The Eldridge and Humana cases do not support George. Because George's claim is not an intentional tort, she properly invoked the jurisdiction of the Program. A claimant who initially invokes the jurisdiction of the Program should be required to exhaust all remedies before that forum.\\nNavajo Nation government employees are 'presumed to have elected to take workers' compensation\\\" coverage when hired. r5 N.N.C. \\u00a7 roo3(A) (1995). Thus, when a Navajo Nation employee is injured accidentally during the course and scope of his or her employment, and files a workers' compensation claim, the jurisdiction of the Workers' Compensation Program becomes exclusive. T5 N.N.C. \\u00a7 XOT3. Workers fall within this exclusive jurisdiction when their injuries \\\"arise out of and [are] in the course and scope of employment.\\\" r5 N.N.C. \\u00a7 roo2(F) (1995). Section XOX3 of the Workers' Compensation Act states:\\nThe right to receive compensation pursuant to the provisions of this chapter for injuries sustained by a covered member shall be the exclusive remedy against the Navajo Nation and employees thereof, except where the injury is caused by the fellow employee's willful misconduct... in which event, the injured employee may, at his or her option, either claim compensation or maintain an action at law for damage against the fellow employee... before the Navajo Nation Courts. Id.\\nOnce the employee files a claim, the Program must determine the employee's eligibility for workers' compensation benefits. If the Program denies the claim, the employee can request a hearing before the Board on the issue of whether his or her claim can be compensated. 15 N.N.C. \\u00a7 1010(G) (1) (1995). If the Board upholds the denial, the employee may then file an appeal with this Court. 15 N.N.C. \\u00a7 rorr(B) (1995).\\nGeorge started the process by filing her claim for benefits with the Program. The Program denied her claim on February 4,1994, basing its decision on the facts offered by George at the time. George then sent a letter to the Program requesting a hearing before the Board and offered the following additional information about why she was walking to the Ganado Chapter House:\\n[I]t was part of my routine to check for messages at the Chapter [House] twice each day, this was because the Center which I worked at did not have a phone. I check for messages to keep the lines of communication open with my agency office which is part of my duty____\\nGeorge's Letter dated February 7,1994. The part about checking for messages as part of her job duties was not considered by the claims analyst during the initial review that led to the February 4,1994 denial. Upon advice of its counsel and in light of the additional information George offered, the Program reevaluated George's claim and decided that her claim can be compensated. George was notified of this new decision on April 22,1994 and the Board was notified on April 25,1994 (the date of the scheduled hearing). It appears that the Board may have granted George's request to withdraw her \\\"appeal\\\" because it was satisfied that George had received the relief she wanted. That should have ended the case.\\nHowever, George then obtained counsel and decided to pursue a negligence claim in the district court. She created \\\"material issues of fact\\\" to support her suit by alleging that she was on a personal errand at the time of the accident. Appellant's Complaint dated December 12,1995, allegation No. 5. The record shows that up to the time the complaint was filed, there were no disputed issues of fact as to George's employment status at the time of the accident. In fact, over a year earlier, the Program had determined that she was eligible for workers' compensation benefits. Thus, there was no cause of action for George to sue on in the district court.\\nAccordingly, we hold that the Program's decision of April 22, r994 to award workers' compensation benefits to George is the final and binding decision that precludes her from filing a lawsuit on the same claim in the district court. The district court shall void its summary judgment and dismiss the case before it. The Program shall carry out its decision to compensate George.\\nThis case is remanded to the Window Rock District Court, and from there to the Navajo Nation Workers' Compensation Program, for proceedings consistent with this opinion.\"}"

navajo_nation/3550839.json

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+"{\"id\": \"3550839\", \"name\": \"Dennis WILLIAMS Petitioner vs. The Window Rock District Court Respondent and Ben Wauneka Sr. Respondent and Real Party in Interest\", \"name_abbreviation\": \"Williams v. Window Rock District Court\", \"decision_date\": \"2001-09-21\", \"docket_number\": \"No. SC-CV-37-98\", \"first_page\": 182, \"last_page\": 191, \"citations\": \"8 Navajo Rptr. 182\", \"volume\": \"8\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T20:43:13.248111+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before AUSTIN, Acting Chief Justice, and KING-BEN and GILMORE, Associate Justices.\", \"parties\": \"Dennis WILLIAMS Petitioner vs. The Window Rock District Court Respondent and Ben Wauneka Sr. Respondent and Real Party in Interest\", \"head_matter\": \"Dennis WILLIAMS Petitioner vs. The Window Rock District Court Respondent and Ben Wauneka Sr. Respondent and Real Party in Interest\\nIn the Supreme Court of the Navajo Nation\\nNo. SC-CV-37-98\\nSeptember 21, 2001\\nDennis Williams, Fort Defiance, Navajo Nation (Arizona), Petitioner pro se.\\nBefore AUSTIN, Acting Chief Justice, and KING-BEN and GILMORE, Associate Justices.\\nWe amended the caption to show that any writ of prohibition or superintending control would run to the Window Rock District Court, and Ben Wauneka Sr. is properly named as the real party in interest.\", \"word_count\": \"3266\", \"char_count\": \"19296\", \"text\": \"Opinion delivered by\\nAUSTIN, Chief Justice.\\nThis case comes before us on a petition for a writ of prohibition, superintending control, and the consolidation of certain land dispute cases. For the purposes of our jurisdiction, it is sufficient to note that on May 8,1998 the Window Rock District Court, sitting in small claims, found the Petitioner, Dennis Williams, to be in \\\"civil contempt of court\\\" arising out of a long-standing land dispute which prompts this case, where he was given a suspended \\\"fine\\\" of $350 for the contempt and placed in jeopardy of incarceration. We also assume jurisdiction because the petition alleges a fraud upon the Court, and this Court has the inherent power to hear and determine such a claim so that public confidence in its decisions will not be undermined.\\nThe appeal file is voluminous. The Petitioner offered many exhibits, and his accusation of a fraud upon the Court, or one committed by someone with the Court, required the retrieval and review of nearly twenty-years of records of separate civil actions of both this Court and the Window Rock District Court. We are sensitive to any claim of fraud, and that required a time-consuming review of the full record of this land dispute. Having reviewed that record, we will establish the standard for reviewing claims of fraud upon a court, discuss the appropriateness of a petition for writ of prohibition to address claims of fraud upon a court, and apply those standards to the record before us.\\nI\\nFraud upon the court is a serious matter, because it places the integrity of a given court into question. It raises the specters of bias, favoritism, corruption, and a lack of basic judicial ethics. While judgments presumed to be regular, they can be attacked for a lack of jurisdiction. In the Interest of Two Minor Children, 4 Nav. R. 57,61 (Nav. Ct. App. 1983). There are two ways of moving a court to vacate a judgment. First, there are motions pursuant to Rule 60(c) of the Navajo Rules of Civil Procedure, including motions to vacate a void judgment. In re Adoption of J.L.B., 6 Nav. R. 314,315 (Nav. Sup. Ct. 1990). Second courts have the inherent authority to reopen cases or \\\"take another look at a judgment\\\" where justice and equity require them to do so, because of the principle that courts are to be just and must do justice. Navajo Eng'g and Constr. Auth. v. Noble, 5 Nav. R. 1, 2 (Nav. Ct. App. 1984). The federal courts have a similar procedure, where a litigant attack a judgment in an \\\"independent action\\\" by alleging that a judgment should not be enforced in equity and good conscience, or where there was fraud, among other things United States v. Beggerly, 524 U.S. 38 (1998). That remedy is available only where there has been a \\\"grave miscarriage of justice.\\\" Id. at 47.\\nOne situation where there is a \\\"grave miscarriage of justice\\\" is where there is fraud upon the court. That is what this petition essentially claims. This is the first instance in which such a claim has been brought before this Court. Fraud on the court requires a 'scheme by which the integrity of the judicial process has been fraudulently subverted by a deliberately planned scheme in a manner involving 'far more than an injury to a single litigant. Addington v. Farmer's Elevator Mutual Ins. Co., 650 F.2d 663, 668 (5th Cir. 1981); Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 245-46 (1944). This is another definition:\\nFraud upon the court... should embrace only that species of fraud which does or attempts to, subvert the integrity of the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication, and relief should be denied in the absence of such conduct. 7 Moore's Federal Practice Par. 60.33 (I979)\\nAnother element of fraud upon the court is putting false documents before the court, the kind of conduct alleged here. Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238. The standard for proving fraud on the court is high: \\\"Generally speaking, only the most egregious misconduct, such as bribery of a judge or members of a jury, or the fabrication of evidence by a party in which an attorney is implicated, will constitute fraud on the court.\\\" Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir 1978), quoting United States v. International Telephone & Telegraph Corp., 349 F. Supp. 22, 29 (D. Conn. 1972).\\nII\\nWhile we approve of an independent action to prevent a grave miscarriage of justice, including fraud upon the court, the use of a petition for a writ of prohibition is proper. Writs of prohibition are used to prevent a trial court from unlawfully acting within its jurisdiction. Pino v. Bedonie, 7 Nav. R15, 15 (Nav. Sup. Ct. 1992). In this particular case, a party obtained a small claims judgment against the Petitioner based upon an original judgment, and the court found the Petitioner in civil contempt of court for failure to pay the prior small claims judgment. The court levied a fine and threatened the Petitioner with incarceration. We find it proper to contest the small claims judgment and the underlying judgment using a petition for writ of prohibition, but we limit such a procedure to the usual circumstance where the jurisdiction of the court and the validity of the judgment are being challenged.\\nIII\\nWe now turn to the petition, and we confine ourselves to the original petition and a supplementary submission we requested of the parties. We will not address the other claims the parties have put before the Court in the many documents they have filed. As we understand the petition and the subsequent submission pursuant to this Court's order, the fraud upon the court alleged here consists of this: The Navajo Nation Court of Appeals lacked jurisdiction over appeal No. A-CV-46-81, and to \\\"avoid summary dismissal\\\" and to cover up that lack of jurisdiction, someone or someone working for the Court of Appeals switched the case number from A-CV-46-81 to A-CV- 26-81. The irregularities alleged in support of this case number switching theory include the absence in the record of a pretrial order referenced in the decision of the Court of Appeals, and the lack of either a notice of appeal or a motion for reconsideration to the trial court. The Petitioner also attacks factual errors in the Court of Appeals' judgment, a matter we cannot address here because it does not fall within the fraud upon the court standard stated above. As to those matters, the Petitioner had ample opportunity to raise them previously, and the record shows that in fact he did so.\\nBased upon Petitioner's claims, which question the validity of prior judgments, we will now undertake a review of this land dispute. The Petitioner is advised that the Court gathered records from the former Court of Appeals, the Window Rock District Court, and this Court to do this review.\\nThe legal record of this particular phase of dispute begins with a complaint filed against Ben Wauneka Sr. by Dennis Williams (the Petitioner here) on August 1981. No. WR-CV-490-81. On September 23,1981, the Window Rock District Court determined that Williams had exclusive rights to 7.6 acres of a disputed 10.8 acre area Williams calls the \\\"Boh Toh Canyon\\\" land, and Charles Wauneka had exclusive rights to 3.2 acres. Id., Judgment at 3 file of the subsequent appeal in Cause No. A-CV-46-81 in the Navajo Nation Court of Appeals shows that a permanent injunction was issued from the Window Rock District Court on September 23,1981. The file contains the notice appeal that was used to appeal the September 23,1981 judgment. The notice of appeal was filed by Attorney Kee Yazzie Mann on behalf of \\\"Ben Wauneka, and Charlie C. Wauneka,\\\" on October 23,1981. Mr. Mann also requested a trial de novo in his notice of appeal. The appeal was timely under 7 N.T.C. \\u00a7 801 (1978), because it was filed on the thirtieth (30th) day following the date of the judgment on the last day to file for the Court of Appeals to have jurisdiction. Mr. Mann also filed a \\\"motion for correction of errors for a new trial, and for recusal\\\" with Window Rock District Court, which was the equivalent of a motion for reconsideration. It is dated October 2,1981 November T2,1981, Attorney Leonard Watchman, the Petitioner's counsel, filed a response and motion to deny appeal. The issue of appellate jurisdiction was not raised in that motion or in subsequent filings on the Petitioner's behalf. Obviously, all persons associated with this case knew the appeal was timely filed.\\nFrom there, the record of the Court of Appeals is thick with filings, responses and other documents. On August 3,1983, the Acting Chief Justice entered an order finding probable cause to hear the appeal, and he made orders for the preparation of a pretrial order. The record shows that the order was issued by the Clerk of the Court of Appeals \\\"upon the telephonic instruction of the Acting Chief Justice.\\\" The Chief Justice at the time was the Honorable Nelson J. McCabe. He was the permanent head of the Court of Appeals, and trial judges were appointed to sit with him to hear appeals. It appears that Chief Justice McCabe removed himself from the case, and Judge Robert Walters was appointed as the Acting Chief Justice to sit with Judge Marie F. Neswood and Judge Harry Brown. Judge Walters was the presiding judge in the Tuba City District Court, and apparently due to the distance between Window Rock and Tuba City, he directed the issuance of the order by telephone. Such was proper then (and is proper now), because the order was procedural and not a final order.\\nOn September 19,1983, Attorney Lawrence A. Ruzow filed a stipulated order in accordance with the Acting Chief Justice's order. Attorney Leonard Watchman, acting on the Petitioner's (Williams) behalf, filed a response to Ben Wauneka Sr.'s answer and counterclaim on September 16,1983. On October 5,1983, the Clerk of the Court of Appeals received proposed findings of fact, conclusions of law and a judgment submitted by Mr. Ruzow. That document has the correct docket number A-CV-46-81. The Court of Appeals filed its final judgment on July 24,1984 and it is this judgment that has the incorrect docket number (A-CV- 26-81) The Petitioner uses that error to argue his case number switching theory. The final judgment is obviously written with a typewriter. The writer must have hit the \\\"2\\\" key rather than the \\\"4\\\" key, and that resulted in a typographical error.\\nDespite that error, the record does not support Petitioner's claim that the docket number was \\\"switched\\\" to cover up a lack of jurisdiction. The Court of Appeals clearly had jurisdiction, because the notice of appeal timely filed. In addition, at no time did the Petitioner challenge jurisdiction before the Court of Appeals on the ground that the appeal was not timely filed.\\nThe Petitioner made a motion for rehearing following the Court of Appeals' trial de novo and oral decision from the bench, raising his claims again. On July 24,1984, Court of Appeals entered a ten page order denying the motion for rehearing. This order has the correct docket number of A-CV-46-81.\\nOn the issue of a pretrial conference on the appeal the order denying the motion for rehearing recites that at the time of a scheduled pretrial conference, \\\"the Acting Chief Justice reviewed carefully the pre-trial order submitted to comment and negotiate the terms of the trial order.\\\" He ordered \\\"counsel for Wauneka,\\\" to prepare a final pretrial order, and have it approved by counsel the Petitioner. The final pretrial order was signed by both counsels and submitted to the Court without amendment on September T9,1983.\\nThe Court of Appeals held a trial de novo on September 1983, and at the conclusion, the Court found that neither Ben Wauneka Sr. nor Dennis Williams had met their burden of proof that they had an interest in the land, so it vacated the Window Rock District Court's September 23, judgment. The Court of Appeals found that at the time of his death, Charley Nez Wauneka Sr. had exclusive rights to the land in dispute.\\nTo illuminate the practice of the time, the statutory rule procedure for appeals was as follows: Appellants were required to file a motion for reconsideration of a judgment prior to taking an appeal. That was done. The appeal had to be filed within thirty days of the trial court's judgment, and that was done. After a case was filed, the Chief Justice made a determination of whether there was \\\"probable cause\\\" for an appeal, and appeals were heard \\\"de novo.\\\" That means the old practice (in the absence of trial transcripts) of the appellate court hearing the case anew before a panel of three judges. Specifically, despite the Window Rock District Court's September 23, T98T judgment, the case was heard all over again by the Court of Appeals, under the existing law at that time. The usual procedure was for the Court of Appeals to hear the case, and the judge would then give instructions for someone to write the decision. While Mr. Ruzow may have prepared a draft judgment at the instruction of the Court, it is likely that the solicitor, the Court's attorney, wrote the order denying a rehearing. We base that assumption on the difference in type and writing styles of the judgment and the order denying a rehearing.\\nThe most important part of the Petitioner's challenge is the allegation that the Court of Appeals did not have jurisdiction over the appeal of the September 23,1981 judgment. The record does not support that claim. The record consists of a motion for reconsideration made to the district court and a notice of appeal with a date stamp on it. The correct filing date is reflected on the docket sheet which shows the appeal was timely.\\nIn sum, the record does not support the Petitioner's claim. The docket number switching conspiracy theory might be plausible if indeed the notice of appeal was filed late or if no motion for reconsideration was filed. The one defect that does appear is an incorrect docket number on the Court of Appeals' final decision, but it is obviously a typographical error. Moreover, the error had no effect on either the jurisdiction of the Court of Appeals or its decision on the merits. Despite the discrepancy between the docket numbers, the names of the parties are correctly listed in the caption of the final decision. We now order that typographical error corrected.\\nWhile that appeal was pending, Charley Nez Wauneka Sr.'s probate was before the Window Rock District Court Based upon the Court of Appeals' decision that the Petitioner had no interest in the land, the administrator of the estate appealed the district court's denial of his claim against the Petitioner for unauthorized use of the land. Matter of the Estate of Wauneka Sr., 5 Nav. R 79 (Nav. Sup. Ct. 1986). This Court reversed the district court's judgment (in an appeal on the record, because the Judicial Code was amended in 1985 to provide for them) and there was a slip of the pen in citing the prior Court of Appeals judgment because of the typographical error in it. See Id. at 79, 81, 82. There was another appeal, which was decided on May 31, 1988, and another motion for reconsideration, which was denied. Matter of the Estate of Wauneka, Sr. v. Williams, 6 Nav. R. 63 (Nav. Sup. Ct. r988). We will not elaborate further on the other proceedings before this Court in the interest of time.\\nIn sum, the Petitioner has had many opportunities to assert the claims he attempts to bring before us yet again. We cannot leave this case, however, without commenting upon some problems we find in the entire record that concerns the Petitioner's conduct. The same issues have been litigated again, again, and again. It is time for this \\\"land dispute\\\" to stop. The Petitioner had his day in court many times, and the record shows the many documents filed on the Petitioner's behalf and the hearings he had.\\nWe also note that while the Petitioner filed his papers pro se, he is obviously using law-trained individuals to write his papers. Their style varies, from the poorly-written and bombastic initial petition to the well-written and diplomatic submission. We ignored the essay on contemporary Indian affairs and Navajo Nation politics as mere surplusage. As for ghost-written pleadings by individuals who are not members of our bar, we caution that the practice is a contempt of court and a crime.\\nIn addition, we could assess penalties upon the Petitioner for filing a frivolous petition and wasting the Court's time and limited resources, but we decline to do so with this warning further abuses of the litigation process will not be tolerated. We are aware of the difficulties courts have balancing free speech and process access rights against litigation abuses litigants, but there will come a point, which is within the Petitioner's control, where there will be serious consequences for misconduct. See, Martin-Trigona v. Shaw, 986 F.2d 1384 (11th Cir. 1993); Busby v. Doe, 231 B.R. (M.D. Fla. 1998) and Vasile v. Dean Witter Reynolds, Inc., 20 F.Supp.2d 465 (E.D.N.Y.) (prior review of complaints before filing suits and the authority to end assaults on the judicial process), and compare with Procup v. Strickland, 792 F.2d 1069 (11th Cir. 1986) (a plaintiff cannot be completely foreclosed from any access to court). We also caution that our review of ways challenge judgments is not an invitation to Petitioner to try his claims anew.\\nThe concluding point is that the \\\"Boko Toh Canyon\\\" land does not belong to the Petitioner, and he has no rights to it. Accordingly, the petition for writ of prohibition or other appropriate writ is denied.\\nWe note that fines are not proper in civil contempt cases, because civil contempt is used to enforce judgments and it is not a punishment for past conduct which authorizes a fine as a penalty. Incarceration may not be used to enforce a civil money judgment using civil contempt procedure.\\nThe inventory attached to the probate petition of Charley Nez Wauneka Sr.'s estate identifies the land as the \\\"Creek Canyon Farmland (10.8 acre plot).\\\" He was Charles \\\"Charley\\\" Wauneka Jr.'s father, and the land went to the father when an alleged sale of it to the Petitioner was not proven.\\nBen Wauneka Sr. received the land when the estate of Charley Nez Wauneka Sr. was distributed. The Petitioner belatedly questioned the paternity of Ben Wauneka Sr., hut that issue is definitely foreclosed under the principle of res judicata. Charley Nez Wauneka Sr.'s other children did not challenge paternity when the heirs were determined, and we note that the Petitioner was not Charley Nez Wauneka Sr.'s child.\"}"

navajo_nation/3551095.json

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+"{\"id\": \"3551095\", \"name\": \"Phildon Ray JACKSON Petitioner-Appellant vs. BHP WORLD MINERALS Respondent-Appellee\", \"name_abbreviation\": \"Jackson v. BHP World Minerals\", \"decision_date\": \"2004-10-07\", \"docket_number\": \"No. SC-CV-36-00\", \"first_page\": 560, \"last_page\": 572, \"citations\": \"8 Navajo Rptr. 560\", \"volume\": \"8\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T20:43:13.248111+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before FERGUSON, Acting Chief Justice, and J. BENALLY, Associate Justice.\", \"parties\": \"Phildon Ray JACKSON Petitioner-Appellant vs. BHP WORLD MINERALS Respondent-Appellee\", \"head_matter\": \"Phildon Ray JACKSON Petitioner-Appellant vs. BHP WORLD MINERALS Respondent-Appellee\\nIn the Supreme Court of the Navajo Nation\\nNo. SC-CV-36-00\\nOctober 7, 2004\\nLoretta Danzuka, Esq., and Josephine Foo, Esq., Shiproclc, Navajo Nation, for Appellant.\\nR. Thomas Dailey, Esq., Farmington, New Mexico, for Appellee.\\nBefore FERGUSON, Acting Chief Justice, and J. BENALLY, Associate Justice.\", \"word_count\": \"3116\", \"char_count\": \"19647\", \"text\": \"Opinion delivered by\\nFERGUSON, Acting Chief Justice.\\nThis case concerns the jurisdiction of the Navajo Nation Labor Commission and its conclusion that Appellee fired Appellant for just cause. Based on our review, we affirm.\\nI\\nThe relevant facts are as follows. Appellee BHP Minerals (Appellee) hired Appellant Phildon Jackson (Appellant) to work as an \\\"Utility C\\\" employee. Appellant submitted his employment application, was informed by Appellee that he had been hired, and participated in a two week training at the Navajo Mine, located on trust land within the boundaries of the Navajo Reservation. Appellee assigned him to work at the San Juan Mine, located outside the boundaries of the Reservation. Appellee's human resources office and files for San Juan Mine workers are located at the Navajo Mine.\\nBefore Appellant could begin work, Appellee required him to take and pass a physical examination, which included a drug test. According to Appellee's policies, it will not hire an applicant if he or she fails a drug screening. Appellee offered employment in a letter, conditioning Appellant's employment on a preemployment physical examination. Appellant signed the letter indicating he accepted the terms of the employment offer. Appellant was scheduled to take his physical before he began work. For some reason, which is not clear in the record, Appellant did not take his physical on the scheduled date, but took his exam seven days after he began work. According to the drug test results, Appellant tested positive for marijuana. Dr. Robert Rhien, the doctor who administered the examination (hut did not do the actual testing), testified that he has administered hundreds of pre-employment physical exams over the years of his practice. Before informing Appellee of the results, Dr. Rhien discussed them with Appellant. He then informed Appellee.\\nAfter receiving notice of the test results from Dr. Rhien, Appellee took several steps to decide whether to keep Appellant. First, representatives of Appellee's human resources office held a meeting with Appellant to discuss the drug test results, where Appellant attempted to explain how he could have tested positive for marijuana. Appellee then requested that Appellant meet with a substance abuse counselor. The substance abuse counselor reported several other allegedly negative characteristics about Appellant. After that meeting, representatives of Appellee held a final meeting where they informed Appellant that he would be fired. Appellee issued a written termination notice that indicated Appellant was terminated because he had \\\"failed physical.\\\"\\nAppellant filed a charge with the Office of Navajo Labor Relations under the Navajo Preference in Employment Act (NPEA), 15 N.N.C. \\u00a7 201 etseq., and then a complaint with the Navajo Nation Labor Commission. Dr. Rhien testified for Appellee at the Commission hearing. During Dr. Rhien's testimony, Appellant submitted a copy of the laboratory report on his test results, identified in the record as Petitioner's Exhibit 6. Based on the exhibits submitted and the testimony of Dr. Rhien, Appellant, representatives of Appellee's Human Resources Office, and others, the Commission concluded that Appellee fired Appellant for just cause for failing the drug test. This appeal followed.\\nII\\nThe issues in this case are (i) whether the Navajo Nation Labor Commission has subject matter jurisdiction over the termination of a Navajo worker when the hiring and training of that worker occurred within the Navajo Nation; and (2) assuming there is jurisdiction, whether Appellant was fired for \\\"just cause\\\" under the Navajo Preference in Employment Act.\\nIII\\nAs a threshold matter, Appellee argues that the Navajo Nation Labor Commission (Commission) lacked jurisdiction over this case because Appellant worked at the San Juan Mine. According to Appellee, the Commission's authority is coextensive with the Nation's territorial jurisdiction as defined by the federal \\\"Indian Country\\\" statute, 18 U.S.C. \\u00a7 TT5T. Appellee alleges that the mine is located outside the boundaries of the Navajo Nation under that statute. As the land on which the mine sits is not in trust for the Nation or an allotment, Appellee contends the test is whether the land on which the mine sits fulfills the two-part test defining \\\"Dependent Indian Community\\\" announced in Alaska v. Native Village of Venetie, 522 U.S. 520 (1998).\\nAppellant relies on the plain language of the Navajo Preference in Employment Act (NPEA), as codified in the T995 Navajo Nation Code, which purports to extend the Commission's authority to employers \\\"doing business within the territorial jurisdiction [or near the boundaries] of the Navajo Nation[.]\\\" 15 N.N.C. \\u00a7 604 (emphasis added). According to Appellant, Venetie is not applicable, and this Court should apply the plain language of the NPEA. Based on that language, Appellant contends that the San Juan mine area is \\\"near\\\" the boundaries of the Navajo Nation, and therefore under the regulatory authority of the Commission.\\nThough both arguments assume that the geographical point of reference for our analysis is the San Juan Mine, the Commission did not make that assumption. In upholding its jurisdiction the Commission cited undisputed facts concerning Appellee's activities at its Navajo Mine, which is unquestionably within the territorial jurisdiction of the Navajo Nation. As found by the Commission, the human resources office and the employment records for the San Juan Mine are located at the Navajo Mine. More importantly, Appellant submitted his employment application, was informed by Appellee that he had been hired, and participated in a two week training at the Navajo Mine. Based on these facts, the question is whether Appellee's hiring and training activities within the Navajo Nation trigger the Commission's NPEA authority regardless of where Appellant actually worked.\\nWe recently announced a jurisdictional test for cases involving activity inside and outside the Navajo Nation. In Pacifcorp v. Mobil Oil, 8 Nav. R. 378 (Nav. Sup. Ct. 2003), we had to decide whether our courts had subject matter jurisdiction over a contract dispute between two corporations when one party's performance, the provision of electricity, was inside the Navajo Nation, and the other party's performance, payment for the electricity, occurred outside the Nation. We stated that if there is a \\\"sufficient nexus to activity on tribal land within the Navajo Nation, the cause of action arises there for purposes of the Navajo Nation's jurisdiction.\\\" Id. at 385.\\nUnder this test, there is a sufficient nexus to employment activity within the Navajo Nation to assert NPEA jurisdiction over this case. Necessary elements to create an employment relationship, hiring and training, occurred within the Navajo Nation. Even though Appellee ultimately assigned Appellant to a different mine, the Appellee's administration of the employment relationship remained at the human resources and records office within the Nation. Under these facts, there is a sufficient nexus to activity within the Nation, and the regulatory power of the Commission extends to the employment relationship between the parties.\\nLet the parties be clear on our holding. We do not say that the San Juan Mine is or is not within the territorial jurisdiction of the Navajo Nation. As jurisdiction is premised on the activities at the Navajo Mine, we do not need to resolve the question of whether the San Juan Mine is within a \\\"Dependent Indian Community.\\\" We explicitly reserve this question for a case where it is necessary to make that determination. Under the facts of this case, the Commission had jurisdiction.\\nIV\\nTurning to the merits of the case, Appellant argues several reasons why the Commission erred. First, he contends that Appellee's termination letter did not provide adequate notice of the reason for his termination. Second, he argues that the Commission erred in concluding Appellee fired him for \\\"just cause.\\\" We first discuss the standard of review in NPEA cases.\\nWe review decisions of the Commission under an abuse of discretion standard. Tso v. Navajo Housing Authority, 8 Nav. R. 548, 554 (Nav. Sup. Ct. 2004). Among other things, the Commission abuses its discretion when it makes an erroneous legal conclusion, or if its factual findings are not \\\"supported by substantial evidence.\\\" Id. at 555. We review the legal conclusions de novo, with no deference given to the Commission's interpretation of the law. Id. Our review of the factual findings is more deferential. Id. This Court will find that a decision is \\\"supported by substantial evidence\\\" where, after examining the relevant evidence, a \\\"reasonable mind could accept [the evidence] as adequate to support the conclusion, even if it is possible to draw two inconsistent conclusions from the evidence.\\\" Id. Here, the facts underlying the Commission's decision are reviewed under the substantial evidence standard. However, whether the notice given was adequate or whether the facts as a matter of law rise to \\\"just cause\\\" are legal questions we review de novo. Id. We now turn to each issue.\\nA\\nAppellant first argues that the termination notice was inadequate under the NPEA. The NPEA requires \\\"a written notification... citing [the] cause\\\" for the termination. 15 N.N.C. \\u00a7 604(B)(8). One of the main purposes of written notification is to inform an employee of the basis for the adverse action. By this notice the employee is able to pursue legal remedies with an understanding of what facts the employee must address. Smith v. Red Mesa Unified School District No. 27, 7 Nav. R. 135, 137 (Nav. Sup. Ct. 1995). Another purpose is to prevent ad hoc justifications for termination by requiring the employer to clearly state why an employee's conduct is unsatisfactory. Id. This stops the employer from avoiding the just cause requirement by merely stating general displeasure with an employee as grounds for firing. To fulfill these purposes, the notification must be in writing, must be meaningful and reasonably clear in its language, must contain facts supporting the termination, and must be provided to the employee contemporaneously with the adverse action. Dilcon Navajo Westerner/ True Value Store v. Jensen, 8 Nav. R. 28, 39 (Nav. Sup. Ct. 2000). Appellant contests the meaningful requirement, contending that the phrase \\\"failed physical\\\" did not clearly alert him of the reason for his termination.\\nWhat constitutes meaningful language in a termination notice depends on the whole context of the employment relationship, in that the language is designed to alert a specific employee at a specific place and time of the reasons for the termination. In reviewing the meaningfulness of the notice, we do not look at the bare language in a vacuum, but consider the full interaction between the employer and employee leading up to the notice. In Red Mesa we considered the meaningfulness of the notice in the context of contemporaneous documents given to the employee discussing her deficiencies. 7 Nav. R. at 137. As the employer had discussed the reasons it was displeased with the employee's work leading up to the termination, we held that the notice was meaningful, as the employee \\\"fully understood the basis for the [employer's] actions and that she received fair notice of the grounds for her eventual termination.\\\" Id. We contrast that situation with the one in Manygoats v. Atkinson Trading Co., where the employer merely wrote on a scrap of paper that the employer had \\\"violated company policies,\\\" with no previous notice of deficiencies or discussion about what violation of \\\"company policies\\\" occurred. 8 Nav. R. at 38 (Nav. Sup. Ct. 2003).\\nUnder this approach, when considered in light of the discussions between Appellant and Appellee leading up to his termination, the notification was meaningful. First, the doctor in charge of Appellant's drug test discussed the results with Appellant. Appellee then held a meeting with Appellant, again to discuss the results. Then, at Appellee's request, Appellant met with a substance abuse counselor. After that meeting, Appellee met again with Appellant to discuss his termination. Here, given the multiple discussions between employer, its agents, and employee, Appellant clearly was on notice of the reason for his termination, and therefore the phrase \\\"failed physical\\\" was sufficient to alert him that he had to argue he did not fail his drug test before the Commission.\\nB\\nAppellant makes several arguments why the Commission's conclusion that there was \\\"just cause\\\" is wrong. We focus first on his argument that there was not substantial evidence to find that he tested positive for marijuana. Appellant suggests that this Court adopt a rule used in New Mexico state courts know as the \\\"legal residuum rule.\\\" Under this rule of administrative law, a court will not uphold a factual finding of an agency in a case where a \\\"substantial right\\\" is at stake if based only on evidence that would be inadmissible in a court of law. Trujillo v. Employment Sec. Comm., 610 P.2d 747, 748 (1980). According to Appellant, the Commission's finding that he failed his drug test is only supported by inadmissible hearsay testimony of Dr. Rhien, and therefore, under the legal residuum rule, should be rejected as lacking \\\"substantial evidence.\\\" The Rules of the Navajo Nation Labor Commission do not require that evidence be admissible under formal rules of evidence, but the Commission may exclude any evidence that is \\\"irrelevant, immaterial, or unduly repetitious.\\\" Amended Rules of Procedures for Proceedings Before the Navajo Nation Labor Commission, Rule 15(E). Despite that, Appellant contends that the legal residuum rule is required as a matter of due process.\\nThough we may adopt a state rule in the absence of Navajo or federal law on the subject, 7 N.N.C. \\u00a7 204(C) ^995), it is unnecessary to do so in this case. Even assuming we apply the legal residuum rule, there is admissible evidence of the test results. Curiously, Appellant claims the only evidence submitted to the Commission was \\\"a statement and testimony of Dr. Rhien.\\\" Appellant's Supplemental Brief at 9. Appellant makes this assertion multiple times, at one point in this brief by stating that \\\"[t]he test result itself was never provided to the Commission by the Employer in spite of Appellant's repeated requests that it be provided.\\\" Id. at 8 (emphasis added). While technically true that Appellee did not provide the results, a cursory review of the exhibits submitted at the hearing and the transcript of the proceedings show that Appellant himself submitted a copy of the test results. During his cross-examination of Dr. Rhien, Appellant submitted Petitioner's Exhibit 6, which is a copy of a report by S.E.D. Medical Laboratories showing that Appellant tested positive for marijuana. Transcript at 164. Appellant and the Commission discussed this document at length with Dr. Rhien, and the document became part of the evidentiary record. Transcript at 164-166,189-192.\\nPetitioner's Exhibit 6 would have been admissible in a court of law. First, Appellant himself submitted it, and therefore any objection to its admissibility would have been waived. Second, even assuming Appellee had submitted it, and Appellant had made a timely objection, the report is a \\\"record of regularly conducted activity,\\\" that is a \\\"business record,\\\" under Rule 26(6) of the Navajo Rules of Evidence. Assuming, for the sake of this discussion, that we look to interpretations of the Federal Rules of Evidence (FRE) for guidance, cf. Dale Nicholson Trust v. Chavez, 8 Nav. R. 417, 424 (Nav. Sup. Ct. 2004) (looking to interpretation of federal rules as guidance in absence of an interpretation of the Navajo Rules of Civil Procedure), medical records, including test results, are business records. M. Graham, Federal Practice and Procedure: Evidence \\u00a77074 (2000); see also, e.g., Sheldon v. Consumer Products Safety Comm., 277 F.3d 998, roio-n (8th Cir. 2002). Also, Dr. Rhien, who has administered hundreds of physical exams like the one administered to Appellant, would have been competent to give testimony as the necessary foundation for the admissibility of the record as a \\\"custodian or other qualified witness.\\\" FRE 803(6).\\nBased on this analysis, there was substantial evidence that Appellant tested positive for marijuana. As Appellant does not argue that failure of his drug test is somehow not \\\"just cause\\\" we find the Commission did not err on this point.\\nLastly, Appellant makes several other arguments concerning \\\"just cause,\\\" which we consider briefly. Appellant argues that the Commission wrongly used information from Appellee's substance abuse counselor, concerning other alleged negative characteristics of Appellant, as additional justification for the \\\"just cause\\\" firing. Appellant contends it cannot support the \\\"just cause\\\" determination. Appellant also argues that the Commission improperly faulted Appellant for not objecting to the test results prior to his termination. Even if Appellant is correct that the Commission erred, the fact that Appellant failed his drug test is alone enough for \\\"just cause\\\" under Appellee's employment policies. That the Commission added on additional reasons does not take away the separate and independently sustainable reason of failing the drug test. The Commission's purported errors are then harmless.\\nAppellant also contends that Appellee waived its ability to fire Appellant when it put him to work without first completing the physical. However, as found by the Commission, Appellant was on notice by Appellee's offer letter that his employment was conditioned on completing the necessary pre-employment physical. His pre-employment physical was scheduled before he started work. For a reason not revealed in the record, he did not actually go to his screening until after he began working. He did get his screening within seven days of his start date. Under these circumstances, we do not believe there was a waiver.\\nV\\nBased on the above we AFFIRM the decision of the Navajo Nation Labor Commission.\\nWe are aware that de novo review of \\\"just cause\\\" announced in Tso overrules our previous statements that \\\"just cause\\\" is a factual issue for which we defer to the Commission. See Dilcon Navajo Westerner/ True Value Store v. Jensen, 8 Nav. R. 28, 38 (Nav. Sup. Ct. 2000); Smith v. Red Mesa Unified School District No. 27, 7 Nav. R. 135, 238 (Nav. Sup. Ct. 1995). However, \\\"just cause\\\" is a statutory term created by the Navajo Nation Council, and therefore the interpretation of that term is properly a question of law for which we give no deference to the Commission. Similarly, the written notification requirement arises from the statutory language, and we further have described the requirement in terms of due process. See Smith, 7 Nav. R. at 237. Both elements are legal, not factual, requiring us to review the adequacy of notice as a matter of law.\\nWe apply the version of Section 204 in effect at the time of the filing of this appeal. The Navajo Nation Council amended this section in 2003, changing the placement and language of Subsection (C). Navajo Nation Council Resolution No. CO-72-03 (October 24,2003).\"}"

navajo_nation/3551413.json

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+"{\"id\": \"3551413\", \"name\": \"Lita MANYGOATS Petitioner-Appellee vs. ATKINSON TRADING COMPANY, Inc. d/b/a Cameron Trading Post Respondent-Appellant\", \"name_abbreviation\": \"Manygoats v. Atkinson Trading Co.\", \"decision_date\": \"2003-08-12\", \"docket_number\": \"No. SC-CV-62-00\", \"first_page\": 321, \"last_page\": 339, \"citations\": \"8 Navajo Rptr. 321\", \"volume\": \"8\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T20:43:13.248111+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before YAZZIE, Chief Justice, and FERGUSON, Associate Justice.\", \"parties\": \"Lita MANYGOATS Petitioner-Appellee vs. ATKINSON TRADING COMPANY, Inc. d/b/a Cameron Trading Post Respondent-Appellant\", \"head_matter\": \"Lita MANYGOATS Petitioner-Appellee vs. ATKINSON TRADING COMPANY, Inc. d/b/a Cameron Trading Post Respondent-Appellant\\nIn the Supreme Court of the Navajo Nation\\nNo. SC-CV-62-00\\nAugust 12, 2003\\nAnna Marie Johnson, Esq., Window Rock, Navajo Nation (Arizona), C. Benson Hufford, Esq., and Alexandra Shouffe, Esq., Flagstaff, Arizona, for Appellee.\\nJames B. Collins, Esq., Farmington, New Mexico, and William J. Darling, Albuquerque, New Mexico, for Appellant.\\nBefore YAZZIE, Chief Justice, and FERGUSON, Associate Justice.\", \"word_count\": \"4240\", \"char_count\": \"26578\", \"text\": \"Opinion delivered by\\nFERGUSON, Associate Justice.\\nThis case involves the termination of employee Lita Manygoats (\\\"Manygoats\\\"), a member of the Navajo Nation, by her employer, Cameron Trading Post (\\\"Cameron\\\"), a non-Indian company located on the Navajo Nation. Cameron appeals from Orders issued by the Navajo Nation Labor Commission (\\\"Labor Commission\\\") on remand from a prior decision of this Court, Manygoats v. Cameron Trading Post, 8 Nav. R. 3 (Nav. Sup. Ct. 2000) [hereinafter Manpgoats (I)]. This is Cameron's second appeal. After careful review of the extensive record before us, we affirm the Orders of the Labor Commission.\\nI. FACTS & PROCEDURAL HISTORY\\nCameron Trading Post (\\\"Cameron\\\") consists of a hotel, convenience store, curio/ gift shop, restaurant and gas station located near Cameron, Navajo Nation (Arizona), on non-Indian fee land within the exterior boundaries of the Navajo Nation. It sells Navajo jewelry, rugs and other arts and crafts to both Navajo and non-Navajo customers.\\nThe vast majority of Cameron's employees - between 70% and 90% depending on the season - are Navajo. Manygoats was hired as a clerk and cashier in March 1995. A few months later, upon arriving to work one day, she found that her shifts for the rest of that week had been crossed out. When she asked her manager about this, he told her that she had been fired, but he did not give her any specific reasons for her termination. After she insisted on proper written notification, the manager wrote on a piece of scrap paper: \\\"Lita George [Manygoats] was terminated on 8-10-95 for violation of company policies.\\\"\\nManygoats filed a Complaint with the Office of Navajo Labor Relations (\\\"ONLR\\\") claiming, among other things, that she was fired without just cause and that she had not been given proper written notification citing reasons for her termination. After the ONLR gave Cameron notice of Manygoats' Complaint, Cameron sent her a letter listing six alleged reasons for her termination.\\nThe case went before the Labor Commission; it held that Cameron did not have just cause to fire Manygoats and that its original notice was improper because it failed to cite the specific reasons for the termination, as required by the Navajo Preference in Employment Act (\\\"NPEA\\\"), T5 N.N.C. \\u00a7 604(B) (8). It awarded Manygoats back-pay and attorneys' fees, and imposed a civil fine on Cameron for its violations of the NPEA. Cameron appealed the Labor Commission's decision to this Court.\\nIn Manygoats (I), we held that the Navajo Nation has regulatory and adjudicatory civil jurisdiction over Cameron's employment practices, that Cameron does not have standing to assert the equal protection rights of hypothetical non-Navajo employee-claimants and that while the NPEA's allocation of the burden of proof does not violate the right of employer-respondents to due process, the 'clear and convincing' standard of proof does. Accordingly, we lowered the standard of proof to a 'preponderance of the evidence' and vacated the award of hack-pay and attorneys' fees (which we noted were to be calculated with reference to Navajo Nation attorneys' rates). We also vacated the civil fine on the grounds that its imposition was procedurally defective, and remanded the case to the Labor Commission for further proceedings.\\nOn remand, the Labor Commission applied the 'preponderance of the evidence' standard to the record, which included transcripts' of two days of evidentiary hearings. It concluded that Cameron still did not carry its burden of proving that it either had just cause to terminate Manygoats, or had given her proper written notification. The Labor Commission again ordered Cameron to pay Manygoats back-pay, costs, and attorneys' fees, which it adjusted to reflect prevailing Navajo Nation rates. The Labor Commission repealed the civil fine, however, because it had not made a finding that Cameron had violated the NPEA intentionally.\\nCameron then brought the present (and its second) appeal. Cameron repeats its previous claims that (i) the Navajo Nation does not have jurisdiction over Cameron's employment practices; (2) the NPEA violates the right of non-Navajo employees to equal protection; and (3) the NPEA's allocation of the burden of proof violates the right of employers to due process.\\nIn addition, Cameron makes the new claims that on remand, the Labor Commission violated its right to due process by allegedly reviewing the record without the required quorum and by not holding another hearing or accepting more briefs. Cameron also claims that the Labor Commission erred in finding that it had violated the NPEA's termination provision, 15 N.N.C. \\u00a7 604(B)(8), and in awarding Manygoats costs and attorneys' fees.\\nII. ISSUES AND ANALYSIS\\nThe issues before the Court are the following:\\nr. Whether the Navajo Nation has civil regulatory and adjudicatory jurisdiction over the employment practices of Cameron Trading Post, a non-Indian business employing Navajo workers and operating on non-Indian fee land within the Navajo Nation?\\n2. Whether Cameron has standing to assert an equal protection claim on behalf of hypothetical non-Navajo employee-claimants?\\n3. Whether the NPEA's allocation of the burden of proof violates the right of employer-respondents to due process?\\n4. Whether the Labor Commission violated Cameron\\\"s right to due process on remand by (a) allegedly deciding the case without a quorum, and (b) declining to hold another evidentiary hearing or to accept the submission of additional briefs?\\n5. Whether the Labor Commission erred when it held that Cameron did not prove that it did not violate the NPEA's termination provision, 15 N.N.C \\u00a7 604(B)(8)?\\n6. Whether the Labor Commission erred in awarding attorneys' fees and costs to Manygoats?\\nA. JURISDICTION\\nIn Manygoats (I), we noted that the Treaty of r868 between the United States and the Navajo Nation recognized the inherent sovereignty of the Navajo Nation, and, with it, the inherent authority of the Nation to exercise civil jurisdiction on all land within the exterior boundaries of its territory. 8 Nav. R. at 17. In Montana v. United States, the U.S. Supreme Court held that, as a general rule, inherent tribal sovereignty does not extend to the exercise of civil jurisdiction over non-Indians on non-Indian fee land within the tribe's territory. 450 U.S. 544, 565 (1982). However, the Court recognized two broad exceptions to this general rule:\\nA tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases or other arrangements. [2] A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. Id. (internal citations omitted).\\nThe Navajo Nation's regulation of Cameron's employment practices easily falls within the first exception, for Cameron has clearly entered consensual relationships with members of the Navajo Nation through employment contracts, by employing tribal members to provide services in exchange for mutually agreed upon wages. Its employment practices are, therefore, subject to the Navajo Nation's employment regulations.\\nCameron argues that its employment of Navajo workers is not \\\"consensual\\\" for two reasons: (1) it is prohibited by Title VII of the Civil Rights Act of T964 from discriminating on the basis of race or national origin; since a majority of job applicants are Navajo, it must employ Navajo workers; and (2) even if it were not prohibited by federal law from discriminating against Navajos, it would not be able to avoid hiring them; there are simply not enough non-Navajos in the area to permit Cameron not to employ Navajo workers. Cameron argues that for both of these reasons, it is not voluntarily entering into employment relationships with Navajo Nation members, and the relationships therefore cannot be considered \\\"consensual.\\\" Cameron implies that it would not hire Navajo workers if it could avoid doing so.\\nCameron's argument is disingenuous, for it clearly benefits from the feel of authenticity that Navajo workers bring to the trading post. As we noted in Manygoats (I), Cameron describes itself on its website as \\\"one of the last authentic trading posts... [and] continues to serve as an active trade and cultural center blending modern commerce with traditional Indian trading customs.\\\" 8 Nav. R. at 14. And Joe Atkinson, the President of Atkinson Trading Company, Inc., is quoted as saying:\\nWhat makes Cameron special is not only the fine weavings, baskets and bead work, it's the ambiance. Here you're not just told about the people, their traditions and what trading post life is like. You experience it! This gives the works of art meaning and brings them to life.\\nId. Interacting with the Navajos who work at Cameron is what makes it possible for people who visit the trading post to feel like they are experiencing \\\"the people, their traditions and what trading post life is like.\\\" Cameron's contention that it is somehow forced by law and practical realities to hire Navajos contradicts the fact that it recognizes how important Navajo workers are to the success of its business.\\nMore importantly, from the point of view of the law, Cameron's argument that its employment relationships with its Navajo workers are not consensual is simply wrong. Legal and practical limitations on the employment choices Cameron can make do not, as a matter of law, render those choices involuntary or nonconsensual. All consensual relationships, including those entered into through employment contracts, are formed against the backdrop of particular legal rules (including rules prohibiting discrimination) and market conditions (including the composition of the available labor pool). These rules and conditions may limit the range of choices available to contracting parties, but they do not negate the voluntary or consensual nature of otherwise legal contractual relationships. Since Cameron's employment relationships with its Navajo workers are consensual, the Navajo Nation's regulation of Cameron's employment practices falls within the first Montana exception.\\nMoreover, the Navajo Nation's exercise of regulatory and adjudicatory jurisdiction over Cameron's employment practices satisfies the nexus requirement recently articulated by the U.S. Supreme Court in Atkinson v. Shirley, 532 U.S. 645 (2001). According to Atkinson, \\\"Montana's consensual relationship exception requires that the... regulation imposed by the Indian tribe have a nexus to the consensual relationship itself\\\" Id. at 656. Such a nexus clearly exists here. The regulation at issue is the NPEA, which governs the terms and conditions of employment of Navajo workers on the Nation's territory. The relevant consensual relationship is an employment contract between Cameron and its Navajo workers; therefore, the nexus requirement is met.\\nSignificantly, this case is distinguishable from Montana Department of Transportation v. King, a recent 9th Circuit Court case in which the court held that absent a state or federal statute or treaty, a tribe does not have jurisdiction to regulate the employment practices of state employees working to maintain a right-of-way through their territory. 191 F.3d 1108 (1999). The issue in King was narrowly limited to whether a tribe has jurisdiction over the employment practices of a state - another sovereign - when the state is engaged in performing one of its sovereign duties, namely the maintenance of the highway. Id. at 1114. King did not deal with whether a tribe may impose employment regulations on private employers doing work on fee land within a Nation's territory and therefore has no bearing on the case before us.\\nFinally, the Navajo Nation's exercise of civil jurisdiction over Cameron's employment practices also falls within the second Montana exception. Montana's second exception provides that a tribe may exercise civil jurisdiction over \\\"the conduct of non-Indians on fee lands within its territory when that conduct threatens or has some direclt effect on the political integrity, the economic security, or the health or welfare of the tribe.\\\" 450 U.S. 544 at 565. Economic security is very much at issue in this case.\\nWe take judicial notice of the fact that Navajo Nation unemployment rates are very high. The Navajo Nation Council enacted the NPEA to ensure the economic growth of the Nation and the economic well being of the Navajo workforce. 15 N.N.C. \\u00a7 602 (A). Cameron is the major employer in the area surrounding the trading post, with 7% to 13% of the area's Navajo population working for Cameron at any given time. Most families living in the area rely either directly or indirectly on Cameron for their livelihood. Thus, Cameron's employment practices have a great, and potentially devastating, impact upon the welfare of the local community and economy. Therefore, they properly come within the scope of the Navajo Nation's civil authority.\\nB. EQUAL PROTECTION\\nCameron is once again claiming that the NPEA violates: the right of non-Navajo employees to equal protection. We summarily dismissed this claim in our prior decision because Cameron did not have standing to bring an equal protection action on behalf of hypothetical non-Navajo employee-claimants. Cameron continues to lack standing for this claim, and therefore we uphold our previous dismissal.\\nMoreover, non-Navajos are entitled to the NPEA's written notification and just cause for termination protections. In Staff Relief v. Polacca, we held that \\\"under basic principles of equal protection of law, any person who is injured by a violation of [the] NPEA may file a claim with the Commission.\\\" 8 Nav. R. at 65 (Nav. Sup. Ct. 2000). Cameron's claim is therefore moot.\\nC. THE ALLOCATION OF THE BURDEN OF PROOF\\nOur previous holding that the NPEA's allocation of the burden of proof on employers does not violate their right to due process of law is the law of the case. As we explained in Manygoats (I), placing the burden of proof on employer-respondents to show that they had just cause for any adverse action they took against an employee is not only sensible but it is in keeping with the longstanding common law doctrine that the burden of proof ought to rest on the party with peculiar knowledge of the facts and circumstances relevant to determine a disputed element of the case. As the U.S. Supreme Court has noted,\\nIt is indeed entirely sensible to burden the party more likely to have information relevant to the facts about [the disputed element, such just cause] with the obligation to demonstrate... the existence or non-existence of the element]. Such was the rule at common law.... \\\"In every case the onus propandi [or burden of proof] lies on the party who wishes to support his case by a particular fact which lies more peculiarly within his knowledge, or of which he is supposed to be cognizant.\\\"\\nConcrete Pipe and Products of California v. Construction Laborers Pension Trust For Southern California, 508 U.S. 602,626 (1993) (internal citations omitted). Employer-respondents are simply in a better position to know why they took an adverse action against an employee than is that employee. Therefore, placing the burden of proof on the former to show just cause is neither unfair nor a deprivation of their right to due process.\\nD. THE LABOR COMMISSION'S PROCEDURES ON REMAND\\nCameron claims that on remand, the Labor Commission violated its right to due process in two distinct ways: (r) by allegedly deciding the case with less than a quorum of Labor Commission members, and (2), by not allowing another evidentiary hearing or additional briefs.\\nThe first claim is obviously without merit. The Navajo Nation Code explicitly provides for a five-member Commission and a quorum of three. T5 N.N.C. \\u00a7 303 & 305(A). The same three Labor Commission members who initially heard the case reviewed the evidence and decided the case on remand. Therefore, the case was decided by a quorum, and Cameron suffered no deprivation of due process in this regard.\\nThe second claim is also without merit. This Court does not disturb the substantive or procedural decisions of a quasi-judicial administrative agency unless those decisions were the result of an abuse of discretion. An abuse of discretion by an agency may consist of an action that is:\\nbeyond or outside the power of the agency, based upon a mistake as to the applicable law, a violation of civil rights guarantees, not supported by the evidence, or the [result of] procedures [that] were arbitrary and unreasonable.\\nDilcon Navajo Westerner/True Value Store v. Jensen, 8 Nav. R. 28, 29 (Nav. Sup. Ct. 2000) quoting Navajo Skill Center v. Benally, 5 Nav. R. 93, 96 (Nav. sup. Ct. 1986).\\nThe Labor Commission's decision not to hold another hearing or to accept more briefs was neither arbitrary nor unreasonable. We did not give instructions for a new hearing in Manygoats (I), nor was one required given that the original record was extensive and included the transcript of two full days of evidentiary hearings. Moreover, the Navajo Nation Code authorizes and directs the Labor Commission to \\\"[r]eceive, rule on, exclude, and limit evidence, lines of questioning, or testimony which are irrelevant, immaterial, or unduly repetitious.\\\" 15 N.N.C. \\u00a7304(H). Holding another hearing would have been unduly repetitious because Cameron did not claim to have any new evidence to present.\\nFinally, Cameron had ample incentive to present its strongest case at the initial hearing since it was attempting to meet the 'clear and convincing' standard of proof. Since Cameron had been given a full and fair hearing the first time around, and since Cameron had to meet a lower standard of proof the second time around, the Labor Commission could reasonably have concluded that Cameron would not be disadvantaged by its decision.\\nWe hold that the Labor Commission acted within its discretion in declining to hold additional hearings or to accept additional briefs, and that Cameron suffered no due process violation in this regard.\\nE. THE LABOR COMMISSION'S DECISION ON THE MERITS\\n1. Just Cause\\nBased on its review of the evidence in the record, the Labor Commission held that Cameron did not prove by a preponderance of the evidence that it had just cause to fire Manygoats.\\nWe do not disturb findings of fact unless they are unreasonable. Silentman v. Pittsburg and Midway Coal Mining Company, 8 Nav. R. 306, 312 (Nav. Sup. Ct. 2003). Findings of fact are unreasonable if they are not supported by \\\"relevant evidence which a reasonable mind could accept as adequate to support the [factual] conclusion, even if it is possible to draw two inconsistent conclusions from the evidence.\\\" Id.\\nThe Labor Commission found that only two of the six reasons Cameron cited for its termination of Manygoats in the letter it sent her after she filed her Complaint with the ONLR were supported by sufficient credible evidence. The other four were not. Indeed, the evidence submitted to support them seemed to have been fabricated months after Manygoats' termination. We are satisfied that the Commission's findings of fact were not unreasonable.\\nThe Labor Commission also held that although it had found that two reasons of the reasons were supported by the evidence, these did not rise to the level of just cause. At the very least, 'just cause' implies that the employer must have fair reasons for taking adverse actions against an employee and that those reasons are supported by the facts of the case.\\\" Dilcon, 8 Nav. R. at 38. Indeed,\\n[n]ot all employee misconduct will meet the standard for just cause... The misconduct must he substantial. Thus, a minor neglect of duty, an excusable absence, a minor misrepresentation, rudeness, and even filing a defamation action against the employer have been held not to establish just cause.\\nRothstein, et al., 2 Employment Law \\u00a7 8.8 (2d ed., 2003)(emphasis in original; internal citations omitted). We agree with the Labor Commission's legal conclusion that Cameron did not prove that Manygoats' alleged misconduct was substantial.\\nHowever, we note that the Labor Commission was not required even to inquire into whether Cameron proved the six reasons it listed in its belated letter to Manygoats, for \\\"[o]nce the employer has stated reasons for the employment termination, it is bound by them and cannot come forward with new justifications.\\\" Smith v. Red Mesa Unified School District No. 27, 7 Nav. R. 135, 137 (Nav. Sup. Ct. 1995). Only the first notification counts, both for purposes of determining whether the employer had just cause for the adverse action taken, and for determining the adequacy of the written notification.\\nCameron's original notification was written on torn scrap paper and stated only that Manygoats was fired for \\\"violating company policies.\\\" Given that Cameron (1) had no formal personnel policies and procedures in place, (2) did not properly document Manygoats' alleged offenses at the time they occurred, and (3) never told Manygloats until after she was fired that she was in violation of company policies, the Labor Commission was reasonable in concluding that Cameron did not show that it had just cause to terminate Manygoats' employment.\\n2. Written Notification\\nWe also affirm the Labor Commission's holding that Cameron did not prove that it gave Manygoats adequate written notification of the reasons for her termination. We previously held that the NPEA's written notification provision includes the requirement that notice be given at the time an employer takes an adverse action against an employee. See Dilcon, 8 Nav. R. at 39. Otherwise, there would be nothing to prevent employers from arbitrarily taking adverse actions against their employees, and then making ad hoc justifications for those actions after an employee files a complaint. Red Mesa, 7 Nav. R. at 137. Therefore, we need only examine Cameron's original notification, which it gave Manygoats on the day of her termination.\\nCameron's original notification did not meet the NPEA's requirement that written notification must in all cases cite the cause or specific reasons for the adverse action taken by an employer against an employee. 15 N.N.C. \\u00a7 604(B)(8). One of the main purposes of the written notification provision is to \\\"inform an individual of the basis for adverse action.\\\" Red Mesa, 7 Nav. R. at 137. Thus, we have held that:\\n[i]n order to ensure that the purposes of the written notification requirement are fulfilled, the notification must be meaningful. Therefore, .[it] must be reasonably clear in its language and contain facts that would support the adverse action.\\nDilcon, 8 Nav. R. at 39. This ensures that employees are given the opportunity to decide whether to take appropriate legal action if they feel they have been wronged. In this case, the notice Manygoats received contained no facts that would support her termination. She had to file a complaint with the ONLR to find out why she had been termination.\\nWe affirm the Labor Commission's conclusion that Cameron did not meet its burden of showing either that it had just cause to terminate Manygoats, or that it had given her adequate written notification of the reasons for the termination. Consequently, we also affirm Manygoats' award of back-pay.\\nF. Attorneys' Fees and Costs\\nThe Labor Commission held that Manygoats was entitled to costs and attorneys' fees. The NPEA require that \\\"[i]f, following notice and hearing, the Commission finds that respondent has violated the Act, the Commission shall... award costs and attorneys' fees if the respondent's position was not substantially justified.\\\" r5 N.N.C. 1612(A)(2).\\nWe find that there is ample support in the record for the Labor Commission's determination that Cameron's position was not substantially justified. Cameron's legal arguments were at best misguided, and its evidence ranged from thin to lacking in credibility. Therefore we affirm the Labor Commission's decision to award Manygoats attorneys' fees and costs.\\nThe Labor Commission's Orders are AFFIRMED.\\nIn its first appeal to this Court, Cameron claimed that:\\n1. it did have just cause to terminate Manygoats' employment,\\n2. it had given Manygoats proper written notification,\\n3. that both the award of attorneys' fees and the imposition of the civil fine were unjustified,\\n4. the Navajo Nation lacked regulatory and adjudicatory jurisdiction over its employment practices,\\n5. the NPEA violated the right of non-Navajo employees to equal protection, and\\n6. the NPEA's allocation of the burden of proof, and its 'clear and convincing' standard of proof, violated the right of employer-respondents to due process.\\nWe ruled on the first three issues in Manygoats (I). Our rulings on those issues are the law of the case. However, for the sake of clarity, we restate our reasoning with respect to those issues here, addressing recent developments in the case law where necessary.\\nWe doubt Cameron would have made such an outrageous argument in federal court.\\nCameron also claims that because its employment relationships with Navajos take the form of verbal, rather than written contracts, those relationships do not fall under Montana's consensual relationship exception. This claim is hardly worthy of a response. Montana says nothing whatsoever about the form a contractual relationship must take, and employment contracts need not be written in order to be legally enforceable. The fact that Cameron's employment relationships with its Navajo workers are entered into verbally does not negate their contractual nature.\\nAs we noted in Manygoats (I), the population surrounding the Cameron area is predominantly Navajo. According to Census figures available in 1990, there were 1,on Indians and 24 non-Indians living in the area. 8 Nav. R. at 11.\"}"

navajo_nation/528749.json

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+"{\"id\": \"528749\", \"name\": \"The Navajo Nation, Plaintiff-Appellee, v. Walter Blake, Defendant-Appellant\", \"name_abbreviation\": \"Navajo Nation v. Blake\", \"decision_date\": \"1996-11-05\", \"docket_number\": \"No. SC-CR-04-95\", \"first_page\": 233, \"last_page\": 236, \"citations\": \"7 Navajo Rptr. 233\", \"volume\": \"7\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T21:24:37.695704+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before YAZZIE, Chief Justice, AUSTIN and SLOAN* (*sitting by designation), Associate Justices.\", \"parties\": \"The Navajo Nation, Plaintiff-Appellee, v. Walter Blake, Defendant-Appellant.\", \"head_matter\": \"No. SC-CR-04-95\\nSupreme Court of the Navajo Nation\\nThe Navajo Nation, Plaintiff-Appellee, v. Walter Blake, Defendant-Appellant.\\nDecided November 5, 1996\\nBefore YAZZIE, Chief Justice, AUSTIN and SLOAN* (*sitting by designation), Associate Justices.\\nJimmie Dougi, Esq., Office of the District Prosecutor, Tuba City, Navajo Nation (Arizona), for the Plaintiff-Appellee; and Phillip O. Multine, Esq., Navajo Public Defender\\u2019s Office, Tuba City, Navajo Nation (Arizona), for the Defendant-Appellant.\", \"word_count\": \"1565\", \"char_count\": \"9591\", \"text\": \"OPINION\\nOpinion delivered by\\nAUSTIN, Associate Justice.\\nThe Tuba City District Court sentenced the Appellant, Walter Blake (Blake), to imprisonment and to pay restitution after pleading guilty to the crimes of criminal damage and criminal entry. Blake argues that the district court should have held a hearing to detemine if restitution should be awarded.\\nI\\nBlake was charged with committing seven criminal offenses after he was apprehended for starting a fire that destroyed two businesses in Tuba City, Navajo Nation (Arizona): The Pizza Edge Restaurant and Dahl Chiropractic. Blake pleaded guilty to the offenses of criminal damage and criminal entry, 17 N.N.C. \\u00a7 351, 380 (1995), in exchange for dismissal of the other charges. The criminal complaints for the two remaining offenses listed $2,000 and $72,000 as the amounts of restitution requested by the business owners for damages. Discovery revealed that the owner of the Pizza Edge Restaurant had insurance to cover his losses. Whether Dahl Chiropractic had insurance to cover its losses is not known.\\nDuring negotiations on a plea agreement, the prosecutor informed Blake that restitution would not be sought; therefore, it was not a point of contention, nor included in the final agreement. The parties dispute whether the court accepted the plea agreement and the record is of little help in this regard. Furthermore, neither the parties nor the court raised the issue of restitution at any time during the proceedings, including sentencing. Moreover, although restitution was requested in the criminal complaints, the Navajo Nation did not actively pursue it at all.\\nThe court did not hear any evidence concerning the businesses nor the alleged damages incurred by the owners, perhaps, because the case did not proceed to trial. Also, restitution was not a recommended sentence either by the plea agreement or the Navajo Nation during sentencing. Nonetheless, the court, on its own, awarded $2,000 and $74,000 as restitution to the two business owners. Blake uses these facts to argue that the district court erred when it awarded restitution without a hearing and considering evidence.\\nII\\nRelying on Navajo Nation v. Bedonie, 2 Nav. R. 131, 135 (1979), the Navajo Nation argues that this Court cannot review the restitution issue because Blake did not object to it during sentencing or raise it as a matter of post-trial relief. Bedonie does not support the Navajo Nation. In that case, the issue of whether the court could consider evidence from a prior hearing involving the defendant's co-defendants was before the court. Id. at 134. The Navajo Nation did not object to the court considering the evidence and, on appeal, the issue was ruled as waived for lack of objection at trial. Id. at 135. In this case, the prosecutor requested restitution on behalf of the business owners in the criminal complaints, but he failed to raise it for the court's decision either prior to or during sentencing. In fact, it is not controverted that the Navajo Nation chose not to pursue it. Thus, Blake did not have a viable restitution issue to contest.\\nThe case of Navajo Nation v. Platero, 6 Nav. R. 422, 428 (1991), also sheds light on the appealability of this issue. In that case, we established the rule that this Court \\\"may . consider errors, whether or not they are raised by the defendant, if any of the following is present: (1) if they are plain and affect substantial rights; (2) if they affect jurisdictional or constitutional rights; (3) if there is lack of subject matter jurisdiction; and (4) if review is necessary to avoid grave injustice.\\\" Blake was ordered to pay $74,000 in restitution without being given notice that the court would consider it and without an opportunity to defend. The court's restitution decision plainly affects Blake's due process rights and, undoubtedly, a substantial amount of his property. We see no better case for review, to avoid a grave injustice under the teachings of Platero, than this one.\\nIII\\nOur modem criminal law, as it is found in the Navajo Nation Criminal Code, is foreign to traditional Navajo society. Navajos, traditionally, did not charge offenders with crimes in the name of the state or on behalf of the people. What are charged as offenses today were treated as personal injury or property damage matters, and of practical concern only to the parties, their relatives, and, if necessary, the clan matriarchs and patriarchs. These \\\"offenses\\\" were resolved using the traditional Navajo civil process of \\\"talking things out.\\\" Nalyeeh (restitution) was often the preferred method to foster healing and conciliation among the parties and their relatives. The ultimate goal being to restore the parties and their families to hozho (harmony).\\nThese concepts supported a request for restitution in a juvenile proceeding in a prior district court case. In In the Matter of D.P., 3 Nav. R. 255, 257 (Crownpt. Dist. Ct. 1982), the court discussed the Navajo traditions of putting the victim in the position he or she enjoyed prior to the offense, punishing in a visible way to show a wrong was punished, and giving an offender a means to return to the community by making good for a wrong. Id. The court concluded that \\\"not only is restitution pemitted under Navajo custom law, but indeed it was so central to Navajo tradition in offenses that it should be presumed to be required in any juvenile disposition.\\\" Id. While we agree that restitution is central to Navajo tradition, we do not, at this point, address whether restitution should have presumptive value in criminal cases.\\nRestitution, a time honored American Indian practice, entered the tribal criminal codes through the early Bureau of Indian Affairs (BIA) Code of Federal Regulations (CFR) (often referred to as \\\"Law and Order Regulations\\\"). For example, a provision in the 1938 BIA regulations states as follows:\\nIn addition to any other sentence the Court [CFR Court] may require an offender who has inflicted injury upon the person or property of any individual to make restitution or to compensate the party injured, through the surrender of property, the payment of money damages, or the performance of any other act for the benefit of the injured party.\\nFederal Register, at page 956 (May 18, 1938).\\nIn 1958, the Navajo Nation Council adopted, wholesale, the BIA Law and Order Regulations and made it the Navajo Nation Criminal Code. See Navajo Tribal Council Res. No. CJ-45-58 (passed July 18, 1958). Upon adoption, the restitution provision found in the BIA regulations became a part of Navajo statutory criminal law. Restitution, therefore, is firmly embedded in Navajo common law and in modern Navajo criminal law. With this background, we now turn to the issue raised by Blake.\\nBlake agrees with the Navajo Nation that the district court has the power to award restitution to the business owners upon his guilty plea to criminal damage. Blake, however, takes issue with the court's award of restitution without notice to him and an evidentiary hearing on the issue. Blake believes that the applicable subsection in the criminal statute, 17 N.N.C. \\u00a7 380(C) (1985), requires a hearing and the court must be satisfied of certain factors before awarding restitution.\\nSubsection 380(C) states as follows: \\\"Restitution. The court, in addition to or in lieu of the sentence, may require the offender to pay actual damages for the benefit of the injured party.\\\" (italics in original). Blake believes that the words \\\"actual damages\\\" and \\\"injured party\\\" in the subsection mandates an evidentiary hearing, because, without a hearing, it would be impossible to identify the injured party. Blake also argues that on any claim for damages, there must be evidence presented in support of that claim, because our law is damages cannot be speculative. Wilson v. Begay, 6 Nav. R. 1, 5 (1988).\\nWe agree with Blake. Before restitution can be awarded under the criminal code, and specifically subsection 380(C), the court must be satisfied with these minimal factors: 1) Is restitution appropriate in the case; 2) Who is the injured party; 3) What is the extent of the loss or injury; 4) What kind of restitution is appropriate; and 5) If money is to be paid, what amount would satisfy the actual damages requirement. We believe that these factors satisfy the rudiments of traditional Navajo due process apparent in this criminal statute. We trust the district courts will fashion approaches to ensure that the mandates of the statute are fulfilled.\\nFinally, Blake's guilty plea came before the district court on a plea bargain. Under our law, the district court need not accept the exact terms of a plea bargain. The court should warn the defendant that it may disregard the agreement and impose the full sentence allowed by law before accepting the plea. If the defendant still wishes to enter a guilty plea, the court should proceed to sentence. See, Stanley v. Navajo Nation, 6 Nav. R. 284 (1990).\\nThe decision of the Tuba City District Court on restitution is reversed and the issue remanded to that court for a new hearing.\"}"

navajo_nation/528751.json

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+"{\"id\": \"528751\", \"name\": \"Blaze Construction, Inc., a Blackfeet Charter Corporation, and Sun All, Inc., an Oregon Corporation, Plaintiffs/Appellants, v. The Navajo Tax Commission, The Navajo Nation, Joe Shirley Jr., Victor Joe, Derrick S. Watchman, Elroy Drake, \\\"Jane/John Doe\\\" and Steven C. Begay, Defendants/Appellees\", \"name_abbreviation\": \"Blaze Construction, Inc. v. Navajo Tax Commission\", \"decision_date\": \"1997-09-03\", \"docket_number\": \"No. SC-CV-26-96\", \"first_page\": 288, \"last_page\": 292, \"citations\": \"7 Navajo Rptr. 288\", \"volume\": \"7\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T21:24:37.695704+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before YAZZIE, Chief Justice, CADMAN and *MORRIS (*sitting by designation), Associate Justices.\", \"parties\": \"Blaze Construction, Inc., a Blackfeet Charter Corporation, and Sun All, Inc., an Oregon Corporation, Plaintiffs/Appellants, v. The Navajo Tax Commission, The Navajo Nation, Joe Shirley Jr., Victor Joe, Derrick S. Watchman, Elroy Drake, \\u201cJane/John Doe\\u201d and Steven C. Begay, Defendants/Appellees.\", \"head_matter\": \"No. SC-CV-26-96\\nSupreme Court of the Navajo Nation\\nBlaze Construction, Inc., a Blackfeet Charter Corporation, and Sun All, Inc., an Oregon Corporation, Plaintiffs/Appellants, v. The Navajo Tax Commission, The Navajo Nation, Joe Shirley Jr., Victor Joe, Derrick S. Watchman, Elroy Drake, \\u201cJane/John Doe\\u201d and Steven C. Begay, Defendants/Appellees.\\nDecided September 3, 1997\\nBefore YAZZIE, Chief Justice, CADMAN and *MORRIS (*sitting by designation), Associate Justices.\\nLawrence A. Ruzow, Esq., Window Rock, Navajo Nation (Arizona), for the Appellants; and Herb Yazzie, Esq., and Marcelino Gomez, Esq., Navajo Nation Department of Justice, Window Rock, Navajo Nation (Arizona), for the Appellees.\", \"word_count\": \"2071\", \"char_count\": \"13191\", \"text\": \"OPINION\\nOpinion delivered by\\nYAZZIE, Chief Justice.\\nThe issue before this Court is whether the Window Rock District Court properly dismissed the Blaze Construction, Inc. and Sun All, Inc. (collectively \\\"Blaze\\\") complaint. Blaze sued the Navajo Tax Commission, the members and executive director of the Navajo Tax Commission, and the Navajo Nation (collectively \\\"Commission\\\") for denial of equal protection and due process rights. The Commission filed a motion to dismiss, which the district court granted, and this appeal followed. The issues are: 1) whether the Uniform Tax Administration Statute barred the district court from hearing Appellants' claims; and 2) whether Appellants' claims were exempt from the rule requiring exhaustion of administrative remedies. We will not address the issues of whether the Navajo Nation Sovereign Immunity Act barred Blaze's claims and whether Blaze had a contractual obligation to resolve its dispute through a Commission hearing officer. We affirm the district court's dismissal.\\nI\\nBlaze built roads on the Navajo Nation between 1986 and 1988. In 1989, the Commission issued Notices of Assessment and Demands for Payment to Blaze for its road construction activities based on the Navajo Business Activity Tax (\\\"BAT\\\"). 24 N.N.C. \\u00a7 401-445 (1995) (partially repealed 1995). In September 1989, Blaze appealed the BAT assessment to the Commission.\\nBefore the Commission made a final decision on Blaze's appeal, Blaze filed suit in district court. In its district court suit and appeal to the Commission, Blaze alleged two instances when the Commission violated its equal protection and due process rights. The first claim stemmed from Blaze's tax settlement offer to the Commission, which was rejected. Blaze alleged the Commission had settled comparable cases with other taxpayers for less favorable terms. Moreover, Blaze argued that the Commission refused to settle the case because of an actual bias and prejudice toward Blaze.\\nWith its second claim, Blaze asserted that the Commission unfairly assessed Blaze a BAT when the Commission exempted the Navajo Engineering and Construction Authority (\\\"NECA\\\") from the tax. NECA is an enterprise of the Navajo Nation engaged in road construction activities comparable to Blaze. 5 N.N.C. \\u00a7 1971-1981 (1995). Enterprises of the Navajo Nation are exempt from taxation. 24 N.N.C. \\u00a7 408(A) (1995). Blaze claims discrimination because Blaze and NECA are competitors in road construction bidding and NECA is exempt from the BAT.\\nOn February 14, 1995, a hearing officer issued a decision on Blaze's second claim. The hearing officer held that NECA was properly exempted from the BAT based on the clear language of the Navajo Nation Code. The hearing officer found that \\\"the Navajo Tax Commission is not free to determine that a statutory provision granting an exemption to enterprises owned by the Navajo Nation should not be followed by the [Commission].\\\" Commission Decision at 6 (February 14, 1995).\\nBlaze filed an amended complaint in the district court in April 1996. In the amended complaint, Blaze sought an injunction to force the Commission to accept its settlement offer. Blaze also sought a declaratory judgment on the Commission's practice of assessing Blaze a BAT for road construction activities yet exempting NECA for similar construction activities.\\nIn May 1996, the Commission filed a motion to dismiss based on: 1) the statutory appeal procedure for tax assessments; 2) the exhaustion doctrine; 3) the discretionary clause of the Navajo Nation Sovereign Immunity Act (1 N.N.C. \\u00a7 554(F)(4)(a)(1995)); and 4) a contractual agreement requiring Blaze to bring all disputes to the Commission. The district court granted the motion to dismiss ruling that the Commission had the discretion to resolve Blaze's claims. Blaze appeals.\\nThe Commission has since issued a final judgment on Blaze's appeal of its BAT assessment. While Blaze appealed that decision to this Court, that case is independent of the issues we address today.\\nII\\nA. The Uniform Tax Administration Statute\\nIf Blaze's equal protection and due process claims fall within the scope of the Uniform Tax Administration Statute (\\\"UTAS\\\"), then Blaze must follow the procedures outlined in that statute. The Navajo Nation Council enacted the UTAS in 1995. The UTAS replaced the tax sections of the Navajo Nation Code and attempted \\\"to provide statutory rales applicable to all of the taxes imposed by the Navajo Nation.\\\" UTAS \\u00a7 102 (1995). The old BAT appeal procedures listed at 24 N.N.C. \\u00a7 434 (1995) were replaced by the procedures of the UTAS. The language of the two statutes is nearly identical. Because the Navajo Nation Council adopted the UTAS in 1995, before Blaze filed its complaint in 1996, the UTAS is the law that governs this decision.\\nThe UTAS provides a specific procedure for \\\"[ajppeals from assessments, denials of refund, or other adverse action.\\\" UTAS \\u00a7 131 (1995). The UTAS states:\\n(a) Appeals from assessments, denials of refund, or other adverse action shall be made first to the Office of the Navajo Tax Commission according to procedures established in regulations; these procedures shall also apply to any challenges to the validity of the Code....\\n(b) Appeals from final actions of the highest level of administrative review shall be made only to the Supreme Court of the Navajo Nation, according to procedures established in regulations, but in no case may an appeal of an assessment be taken to the Supreme Court until payment of the taxes assessed has first been made.\\nId.\\nIn 1989, the Commission assessed Blaze a BAT. In its complaint, Blaze asserted two instances of being discriminated against: 1) when the Commission rejected its assessment settlement offer; and 2) when the Commission did not assess a BAT on NECA. These two claims stem from a BAT assessment dispute and question the fairness of Blaze's BAT assessment. They fall within section 131 of the UTAS. Thus, when Blaze filed suit in district court on its two claims, it essentially appealed the Commission's ruling to the courts and that is not permitted by the tax code. The Navajo Nation Council established a clear procedure for tax appeals and Blaze must follow those statutory procedures. UTAS \\u00a7 131. Those procedures require, first, a final decision from the Commission, and then an appeal to this Court.\\nThe UTAS anti-injunction section further bars Blaze from bringing a suit in the district court that would impede \\\"the assessment or collection of the taxes.\\\" UTAS \\u00a7 128 (1995). The UTAS anti-injunction section states:\\nNo suits for the purpose of restraining the assessment or collection of the taxes imposed under the Code shall be maintained in any court by any person, whether or not such person is the person against whom such taxes were assessed. All actions concerning the application of the Code shall be brought pursuant to \\u00a7 131.\\nId. In its amended complaint, Blaze asked the district court to force the Commission to accept Blaze's BAT settlement offer. Blaze also requested the district court to prevent the Commission from collecting Blaze's BAT until NECA was assessed a BAT. These reliefs, if granted, would restrain the Commission's collection of Blaze's BAT. Section 128 does not permit interference with the Commission's collection of taxes.\\nOur interpretation of the UTAS anti-injunction section is consistent with Enochs v. Williams Packing & Navigation Co., 370 U.S. 1 (1962). In that case, the United States Supreme Court interpreted the anti-injunction language of the Internal Revenue Code, Section 7421(a) (1954), which was identical to the language of the UTAS. The Supreme Court found that the statute \\\"withdr[e]w jurisdiction from the state and federal courts to entertain suits seeking injunctions prohibiting the collection of federal taxes.\\\" Id. at 5. Accordingly, because Blaze's requested relief would restrain the Commission's collection of the BAT, the district court properly dismissed Blaze's claims.\\nB. The Exhaustion Doctrine\\nThe UTAS provides a clear procedure for tax appeals. While the UTAS prevents Blaze from bringing its equal protection and due process claims to district court, this Court recognizes exceptions to exhausting administrative remedies. In Navajo Skill Center v. Penally, 5 Nav. R. 93 (1986), we explained the reasoning behind the exhaustion doctrine and provided four exceptions to the doctrine.\\nExhaustion of administrative remedies is the concept that the agency should complete its procedures before the courts interfere. The exhaustion doctrine is very sound and ultimately serves the interests of judicial efficiency and economy. The exhaustion doctrine prevents the courts from interfering until the administrative process has been concluded. This process has been committed to the administrative body by the legislature and it should be permitted to run its course. This doctrine also requires parties to attempt to redress their grievance without resorting to the courts. Lastly, the exhaustion doctrine helps prevent confusion between the courts and the administrative bodies which would arise if a party were able to seek relief in two different forums.\\nGenerally, exhaustion will not be required:\\n1) When the administrative remedy is inadequate. Inadequacy may include unreasonable delay of agency action, inability of the agency to come to a decision, or lack of authority to grant the relief to which the party is entitled.\\n2) When the complainant will suffer irreparable injury if required to exhaust administrative remedies.\\n3) When the agency is clearly acting or attempting to act in excess of its authority.\\n4) When pursuing the administrative process would be futile such as when an agency indicates that it will not consider a party's challenges to its past policies or decisions, which are of questionable legality.\\nId. at 96-97.\\nIn Navajo Skill Center, we discussed whether the district court had jurisdiction to review the Navajo Skill Center's firing of an employee before she had exhausted her administrative remedies. We held that the district court lacked jurisdiction over the employee's due process and civil rights claims because she could still seek relief through the employee grievance process. Id. at 97.\\nBlaze points to the following language in the Commission hearing officer's decision as proof that its equal protection and due process claims fall under the first and fourth Navajo Skill Center exceptions to the exhaustion doctrine:\\nIt is sufficient to say that the [Commission] has followed the C-BAT statute which allowed this exemption. The [Commission] must apply the tax laws as enacted by the Navajo Nation Council; in the absence of some guidance from the Navajo Nation Supreme Court on the interpretation of those laws or some direction from the Navajo Nation Council itself. The Navajo Tax Commission is not free to determine that a statutory provision granting an exemption to enterprises owned by the Navajo Nation should not be followed by the [Commission].\\nCommission Decision at 6 (February 14, 1995). Blaze argues that this statement demonstrates the Commission lacked the authority and willingness to address the discrimination issue and, therefore, the district court was the only appropriate forum.\\nWe conclude that Blaze's equal protection and due process claims do not fall within the Navajo Sl\\u00fall Center exceptions. The hearing officer's decision does not state a lack of authority to address Blaze's claims, but suggests the Commission must follow the law absent direction from this Court or the Navajo Nation Council. Furthermore, the facts in this case are similar to those of Navajo SHU Center. In that case, we held that the employee could not bring her due process and civil rights claims to district court because she failed to exhaust her remedies through the grievance procedure. Similarly, Blaze's equal protection and due process claims stem from an administrative process governed by a statute. Therefore, Blaze must exhaust its remedies through the administrative process.\\nFinally, the UTAS contains an administrative remedy for tax appeals and provides a procedure for judicial review of the final administrative decision. After a final decision is reached, the taxpayer may appeal to this Court. Blaze is not allowed to by-pass the statutory procedure because of an adverse decision.\\nIll\\nWe affirm the decision of the Window Rock District Court dismissing Blaze's equal protection and due process claims.\"}"

navajo_nation/528760.json

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+"{\"id\": \"528760\", \"name\": \"Blanche Raymond, Appellant, v. Navajo Agricultural Products Industry, et al., Appellees\", \"name_abbreviation\": \"Raymond v. Navajo Agricultural Products Industry\", \"decision_date\": \"1995-07-20\", \"docket_number\": \"No. SC-CV-26-94\", \"first_page\": 142, \"last_page\": 146, \"citations\": \"7 Navajo Rptr. 142\", \"volume\": \"7\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T21:24:37.695704+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before YAZZIE, Chief Justice, CADMAN and *TOLEDO (*by designation), Associate Justices.\", \"parties\": \"Blanche Raymond, Appellant, v. Navajo Agricultural Products Industry, et al., Appellees.\", \"head_matter\": \"No. SC-CV-26-94\\nSupreme Court of the Navajo Nation\\nBlanche Raymond, Appellant, v. Navajo Agricultural Products Industry, et al., Appellees.\\nDecided July 20, 1995\\nBefore YAZZIE, Chief Justice, CADMAN and *TOLEDO (*by designation), Associate Justices.\\nRD. Moeller, Esq., Farmington, New Mexico, for the Appellant; and James J. Mason, Esq., Gallup, New Mexico, for the Appellees.\", \"word_count\": \"2143\", \"char_count\": \"13391\", \"text\": \"OPINION\\nOpinion delivered by\\nYAZZIE, Chief Justice.\\nThis is an appeal of a decision by the Window Rock District Court which granted a summary judgment to Navajo Agricultural Products Industry (NAPI). The District Court held that Raymond's claims were barred under the Navajo Sovereign Immunity Act.\\nI\\nRaymond is an enrolled member of the Navajo Nation. On November 18, 1992, Raymond was terminated from her position as the Personnel Assistant/EAP Coordinator with NAPI. Upon completing a grievance procedure, NAPI reinstated Raymond in a February 11, 1993 agreement placing her in the same position she held prior to termination. This agreement required a cooperative working relationship toward the best interests of NAPI.\\nIn the period following her reinstatement, Raymond claims that she was sexually harassed and assigned duties inconsistent with the reinstatement agreement. On June 17, 1993, Raymond filed another grievance regarding these complaints but no action was taken by NAPI in respect to it. On June 21, 1993, Raymond was again terminated.\\nOn September 21, 1993, Raymond commenced suit against NAPI in the Window Rock District Court seeking money damages. She claimed that NAPI's actions were breaches of her employment contract and reinstatement agreement, that she was sexually harassed, that she suffered from the intentional infliction of emotional distress, and that she was wrongfully terminated. On November 19, 1993, NAPI filed a motion for summary judgment. On June 27,1994, the District Court ruled that the Navajo Sovereign Immunity Act barred all of Raymond's claims.\\nOn September 26, 1994, Raymond brought this appeal. On appeal, Raymond presents civil rights arguments that were not before the lower court.\\nII\\nUnder the Navajo Sovereign Immunity Act, the Navajo Nation is immune from suit. 1 N.T.C. \\u00a7 353(a) (1980). 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. 1 N.T.C. \\u00a7 353(b) (1988). 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. 1 N.T.C. \\u00a7 353(c) (1988). 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. 1 N.T.C. \\u00a7 353(e) (1986). Thus, the Act provides individuals with specific remedies and redress from governmental actions which are violative of the people's rights. 1 N.T.C. \\u00a7 353(e) (1986). There are four exceptions to the Nation's immunity from suit under the Act. This Court finds that none of Raymond's claims fall within the Act's provided exceptions.\\nA\\nFirst, the Navajo Nation may be sued when \\\"explicitly authorized by applicable federal law.\\\" 1 N.T.C. \\u00a7 354(b) (1980) (emphasis supplied). Raymond, citing Nez v. Bradley, 3 Nav. R. 126 (1982), claims that the Navajo Nation Courts will hear \\\"constitutional\\\" claims, as stated in the Indian Civil Rights Act (ICRA), and that the Nation cannot \\\"hide behind\\\" its sovereign immunity. Raymond misinterprets Nez. The court in Nez distinguished between laws that expand rights and those which expand jurisdiction. The court denied \\\"that [the ICRA] gives any new jurisdiction to [the] tribal court, because tribal court jurisdiction comes from the sovereignty of the tribe or nation which establishes the court.\\\" Id. at 130-31.\\nThis Court in TBI Contractors, Inc. v. Navajo Nation, 6 Nav. R. 57, 60 (1988), agreed with the U.S. Supreme Court's decision in Santa Clara Pueblo v. Martinez, 436 U.S. 59 (1978), in that the ICRA does not waive a tribe's sovereign immunity from suit. See Johnson v. The Navajo Nation, 5 Nav. R. 99 (1987). Since immunity from suit is an inherent attribute of the Nation's sovereignty, a federal law must expressly waive the Nation's immunity from suit to be \\\"applicable federal law.\\\" It is the finding of this Court that the ICRA is not an applicable federal law under the meaning of section 354(b) of the Act. In addition, the ICRA does not explicitly waive the Nation's immunity from suit as required by the Act. TBI Contractors, 6 Nav. R. at 60. This Court reiterates that the Nation's immunity from suit has not been explicitly waived by the ICRA.\\nB\\nThe second exception to the Nation's immunity from suit under the Sovereign Immunity Act is when the Navajo Nation Council explicitly authorizes suit by resolution. 1 N.T.C. \\u00a7 354(c) (1980). Raymond has not identified a Council resolution that would allow her claims.\\nC\\nThe third exception is for claims within the express coverage and not excluded by the commercial liability insurance carried by the Nation. 1 N.T. C. \\u00a7 354(f) (1988). To determine whether Raymond's claims are expressly covered and not excluded by commercial liability insurance, it is necessary to examine NAPI's insurance policy with Fireman's Fund Insurance Company. This policy covers damages that NAPI becomes legally obligated to pay for bodily injury, property damage, personal injury, and public officials' errors and omissions. The policy expressly excludes liability for:\\nemployment-related or personnel practices, policies, acts, errors or omissions including but not limited to . termination of employment... [and] coercion, criticism, demotion, promotion, evaluation, reassignment, discipline, defamation, harassment, humiliation, discrimination, . or consequential injury as a result of... [the] above. Fireman's Fund Policy sections I.C.2.C. (2), (5) and I.C.2.d.\\nThe policy also expressly excludes public officials' errors and omissions arising out of \\\"failure to perform or breach of a contractual obligation....\\\" Fireman's Fund Policy section I.C.24.e. Therefore, this Court finds that all five of Raymond's original claims are either expressly excluded or not included in the policy's coverage.\\nRaymond asserts that the Nation cannot hide behind its sovereign immunity for suits claiming violations of her civil rights. She is right, but for the wrong reason. In arguing that the Nation cannot enact laws that are violative of U.S. Constitutional guarantees, Raymond is wrong. \\\"Constitutional guarantees... are not applicable to the exercise of governmental powers by an Indian tribe except to the extent that they are made explicitly binding by the Constitution or are imposed by Congress.\\\" Trans-Canada, 634 F.2d 474, 477 (1980); See Santa Clara Pueblo v. Martinez, supra; Talton v. Mayes, 163 U.S. 376 (1896); Native American Church v. Navajo Tribal Council, 272 F.2d 131 (10th Cir. 1959).\\nIndeed, the Nation does not attempt to hide behind sovereign immunity for civil rights claims. The Act itself mandates that commercial liability policies must contain a provision regarding civil rights violations. Under section 354(f)(5) of the Act, the Nation's commercial liability policies must contain a provision covering damages resulting from \\\"wrongful deprivation of civil rights.\\\" The policy contains such a provision at sections III.P. and III.S.:\\nPublic Officials ' Errors and Omissions means any and all Wrongful Acts by an Insured in the discharge of duties for the Named Insured.... Wrongful Act means any actual or alleged error or misstatement, omission, act of neglect or breach of duty including misfeasance, malfeasance, and nonfeasance by the Insured. Wrongful Act includes actual or alleged violations of antitrust statutes, negligent ministerial acts, and violations of federal or state civil rights providing coverage is otherwise afforded under this policy (emphasis in original).\\nAlso, the Act provides for prospective mandamus or injunctive relief for these types of claims as discussed below. 1 N.T.C. \\u00a7 354(g)(1) (1986).\\nA person seeking redress of civil rights violations must establish that Navajo Nation courts have jurisdiction to hear her claims. If the claimant is suing the Nation, the claimant must, as a jurisdictional predicate, establish that the Nation's immunity from suit has been waived. Since the \\\"jurisdiction and powers of the [cjourts of the Navajo Nation, particularly with regard to suits against the Navajo Nation, are derived from and limited by the Navajo [Nation] Council,\\\" 1 N.T.C. \\u00a7 353(c) (1988), the claimant must look to the Council for a waiver of the Nation's immunity from suit. The Council has provided exceptions to the Nation's immunity from suit in the Sovereign Immunity Act. The claimant must apply her claims to the provided exceptions under the Act. It is the duty of the District Court to determine if her claims are civil rights claims and if they are exceptions to immunity under the Act.\\nThis Court agrees with the District Court in that Raymond's claims are not civil rights claims but employment-related claims. The civil rights claims that Raymond raises on appeal were not part of her original complaint and therefore cannot be raised for the first time on appeal. Gudac v. Marianito, 1 Nav. R. 385, 394 (1975).\\nD\\nThe final exception to the Nation's immunity from suit under the Act states that \\\"[a]ny officer, employee or agent of the Navajo Nation may be sued in the [cjourts of the Navajo Nation to compel him/her to perform his/her responsibility under the expressly applicable laws of the United States and of the Navajo Nation, which shall include the Bill of Rights of the Navajo Nation....\\\" 1 N.T.C. \\u00a7 354(g) (1986). This is limited to prospective mandamus and injunctive relief. 1 N.T.C. \\u00a7 354(g)(1) (1986). Raymond is not seeking prospective mandamus or injunctive relief, but is specifically seeking an amount equal to \\\"a sum calculated to reimburse her or her damages,\\\" i.e., retrospective monetary relief. Accordingly, this Court holds that Raymond's claims do not constitute a waiver of the Nation's immunity from suit under section 354(g) of the Act.\\nIII\\nRaymond is wrong in her assertion that breach of contract claims against the Nation are exempted from sovereign immunity under the Sovereign Immunity Act. She asserts that this Court, in TBI Contractors, supra, suggested that the Nation's immunity from suit does not apply to breach of contract suits. That is incorrect. In TBI Contractors, this Court suggested that the appellants should have argued that the provisions of the contract contained a waiver of immunity from suit. Id. at 61. The contract in TBI Contractors was approved by the Navajo Nation Council; therefore, if it contained a provision waiving the Nation's immunity from suit, immunity would be waived under section 354(c) of the Act. The Act does not provide for a waiver of immunity in contract disputes per se. A claimant seeking to sue the Nation for breach of contract must, as in any other claim, state a claim that falls under the express exceptions to the Nation's immunity from suit provided in the Act, Again, this Court finds that all of Raymond's claims are barred by the Sovereign Immunity Act.\\nIs Raymond denied an opportunity to obtain a just remedy for the alleged illegal actions of the Nation? The answer to this question is unequivocally \\\"no.\\\" The stated purpose of the Act is to \\\"balance the interests of individual parties in obtaining the benefits and just redress to which they are entitled . while at the same time protecting the legitimate public interest in securing the purposes and benefits of their public funds and assets....\\\" 1 N.T.C. \\u00a7 354(a) (1985). The exceptions are consistent with this language. If a plaintiff's claims are covered expressly, and not excluded by the Nation's insurance coverage, then a plaintiff may seek retrospective monetary relief. This is the relief that Raymond seeks. Since her claims are not covered by the provisions of the Fireman's Fund Policy, her claims are barred by the Nation's immunity from suit.\\nRaymond should have sought an administrative remedy under the Navajo Preference in Employment Act (NPEA). According to the NPEA, \\\"[a]ll employers shall not penalize, discipline, discharge nor take any adverse action against any Navajo employee without just cause.\\\" 15 N.T.C. \\u00a7 604B(8) (1990). A potential claimant can file a charge with the Office of Navajo Labor Relations, the agency responsible for the monitoring and enforcement of the NPEA. 15 N.T.C. \\u00a7 610A and B (1990). NPEA provides for full enforcement and remedy in sections 10 through 12 (codified at 15 N.T.C. \\u00a7 610-612 (1990)). Remedies available to plaintiffs are both prospective and retrospective. Appeal to the Navajo Nation Supreme Court is available to any party under the NPEA. 15 N.T.C. \\u00a7 613A (1990). Raymond should have exhausted her administrative remedies before seeking relief in the courts. Begay v. Board of Election Supervisors, 2 Nav. R. 120, 125 (1979).\\nIV\\nAll of Raymond's claims are barred by the Navajo Sovereign Immunity Act, and this Court affirms the decision of the Window Rock District Court.\"}"

navajo_nation/528778.json

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+"{\"id\": \"528778\", \"name\": \"PC&M Construction Company, Inc., Appellant, v. Navajo Nation and Navajo Department of Financial Services, Appellees\", \"name_abbreviation\": \"PC&M Construction Co. v. Navajo Nation\", \"decision_date\": \"1994-07-22\", \"docket_number\": \"No. A-CV-05-93\", \"first_page\": 96, \"last_page\": 99, \"citations\": \"7 Navajo Rptr. 96\", \"volume\": \"7\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T21:24:37.695704+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Yazzie, Chief Justice, and Austin, Associate Justice.\", \"parties\": \"PC&M Construction Company, Inc., Appellant, v. Navajo Nation and Navajo Department of Financial Services, Appellees.\", \"head_matter\": \"No. A-CV-05-93\\nSupreme Court of the Navajo Nation\\nPC&M Construction Company, Inc., Appellant, v. Navajo Nation and Navajo Department of Financial Services, Appellees.\\nDecided July 22, 1994\\nBefore Yazzie, Chief Justice, and Austin, Associate Justice.\\nJohn A. Chapela, Esq., Window Rock, Navajo Nation (Arizona), for the Appellant; and Helen E. Avalos, Esq., Navajo Nation Department of Justice, Window Rock, Navajo Nation (Arizona), for the Appellees.\", \"word_count\": \"1407\", \"char_count\": \"8378\", \"text\": \"OPINION\\nOpinion delivered by\\nYAZZIE, Chief Justice.\\nPC&M Construction Company appeals a decision by the Navajo Nation Department of Financial Services to collect a judgment, using an offset provision in the Navajo Business and Procurement Act.\\nI\\nThe Office of Navajo Labor Relations (\\\"ONLR\\\") brought an action on behalf of three Navajo workers against PC&M Construction Company, Inc. (PC&M), the primary contractor on a Navajo Nation funded construction project. The ONLR alleged that PC&M and two of its subcontractors, Ron Prows Construction (\\\"RPC\\\") and Native American Construction and Supply (\\\"NACS\\\"), failed to pay the Navajo workers at the \\\"prevailing wage rate\\\" as required by the Navajo Preference in Employment Act (\\\"NPEA\\\"), 15 N.T.C \\u00a7 607 (1985) (repealed 1990), and the construction contract. The ONLR established the prevailing wage rate for this project using the State of Arizona's minimum wage scale.\\nThe action was filed with the Navajo Nation Labor Commission (\\\"Commission\\\"). On April 30,1992, the Commission found the three defendants jointly and severally liable for violating Section 607 of the NPEA and Section 11 .C and 11 .M of Navajo Manpower Utilization Requirements. Office of Navajo Labor Relations v. PC&M Constr. Co., Inc., NNLC No. 91-006 (decided April 30, 1992). The Commission ordered the three defendants to jointly and several ly pay the three workers their lost wages plus interest at 10% per annum. Id. at 5, 6. PC&M, RPC, and NACS appealed the Commission's decision to this Court. We dismissed the appeal because the Appellants did not file a brief as required by our civil appellate rules. Ron Prows Constr., et al. v. Office of Navajo Labor Relations, No. A-CV-21-92 (Order filed October 22,1992). Our dismissal of the appeal left intact the judgment entered by the Commission against the three construction company defendants.\\nOn December 21, 1992, the controller of the Navajo Nation Department of Financial Services (\\\"NNDFS\\\") notified PC&M by letter that it intended to offset the amount of money PC&M owed under the agency judgment. The amount was to be deducted from other monies the Navajo Nation owed to PC&M on another construction project. PC&M appealed this letter to a hearing officer within the NNDFS and a hearing was held. The hearing officer held that the Navajo Business and Procurement Act (\\\"Procurement Act\\\"), 12 N.T.C. \\u00a7 1507, authorized the NNDFS' intent to offset. In re PC&M Constr. Co., Inc., No. 01-93-F (decided February 2, 1993).\\nPC&M appealed the hearing officer's decision to this Court. Before the appeal could be granted, this Court had to decide whether it had jurisdiction over the appeal. We held that we did. PC&M Constr. Co., Inc. v. Navajo Nation, et al., 7 Nav. R. 58 (1993).\\nOn October 11, 1993, the Nation filed a Motion to Strike because certain exhibits were not made a part of the record. We granted the Motion to Strike.\\nII\\nThe issue on appeal is whether the offset provision of the Navajo Business and Procurement Act, 12 N.T.C. \\u00a7 1507, can be used to enforce the Commission's judgment for the benefit of individual Navajo workers.\\nIII\\nThe ONLR is an administrative agency established by the Navajo Nation Council to implement Navajo Nation labor policies, and monitor and enforce the NPEA. 15 N.T.C. \\u00a7 10 (1990). The ONLR brings employment disputes between aggrieved workers and their employers to hearings before the Commission. Under the NPEA, the ONLR can abstain from action and permit workers to sue on their own behalf, or it can generate its own charge against an employer. 15 N.T.C. \\u00a7 10. B.I., H.l. (a), H.2. (a), I (1990). The ONLR uses the latter procedure when it wishes to stop an offensive employment practice which impacts a broad class of Navajo workers and specific workers desire to remain anonymous. A third method allows the ONLR to file a complaint with the Commission on behalf of Navajo workers. 15 N.T.C. \\u00a7 10.1.1., H.2.(a) (1990). If this option is used, it precludes the worker's right to sue on his or her own behalf. The ONLR frequently uses this method when it detects issues that are of considerable interest, not only to workers, but to protect the interests of the Nation as a whole.\\nWhen the ONLR acts in its official capacity, it has available all Navajo Nation law needed to officially carry out its obligations under the NPEA. The NPEA requires contractors to pay workers the prevailing wage rate as established by the ONLR. PC&M's failure to pay workers at that rate was a violation of the NPEA and a breach of its contract with the Nation. The ONLR had discretion to be directly involved in this suit and represent the aggrieved Navajo workers. We conclude that the ONLR acted properly under authority of the NPEA as a legitimate party to the suit in its representation of the individual Navajo workers.\\nThe Commission's decision against PC&M and the two subcontractors awarded a money judgment in favor of the Navajo workers represented by the Nation through the ONLR. PC&M argues that because the judgment award was specifically for the workers, and not for the Nation, it has no authority to collect that judgment using the offset provision in the Procurement Act. PC&M argues that the workers can collect their judgment as private parties using the remedies available in 7 N.T.C. \\u00a7 701-712 (1985).\\nThe Navajo Nation was the only party in the action before the Commission. It acted in an ex relatione capacity. The three Navajo workers, on whose behalf the ONLR was acting, were not even parties to the action. The Commission's judgment was, therefore, for the Nation; the only party to the action. It is immaterial that the workers will ultimately benefit.\\nThe Procurement Act was created to enforce the Navajo Nation Collection System in the best interests of the Navajo Nation. Navajo Nation Council Resolution No. CD-62-86 (December 11, 1986). The relevant part of the Procurement Act provides as follows:\\nIf [a] . business has an outstanding money judgment against it in favor of the Navajo Nation . upon due notice the Navajo Nation may offset its money claim against any amount it owes to or has account payable to the . business .\\n12 N.T.C. \\u00a7 1507(1986).\\nThe Commission entered judgment in favor of the Navajo Nation. The ONLR is entitled to use the offset provision cited above to collect the outstanding money judgment from PC&M, because the ONLR fits under the definition of \\\"Navajo Nation\\\" in the Procurement Act. 12 N.T.C. \\u00a7 1503 a.(6), (8)-(9) (1986). The Procurement Act does not exclude judgments from offset proceedings entered in favor of the Nation acting in an ex relatione capacity. We hold that the offset is proper.\\nThis Court will not create a judicial exception to the offset provision of the Procurement Act for judgments entered in favor of the Nation when it acts in an ex relatione capacity, as PC&M suggests. That is a matter for the Navajo Nation Council to consider. We believe that such an exception would work a substantial injustice to Navajo workers whose claims have been controlled by the ONLR throughout the NPEA enforcement process. It would very likely reduce the leverage the ONLR has to assure compliance with the NPEA.\\nThe decision of the hearing officer is AFFIRMED.\\n. The Navajo Nation filed a Motion to Strike exhibits A through F, and arguments based on those exhibits, because they were not made a part of the record during the administrative hearing. They included the issue of \\\"[wjhether the appellant [PC&M] was justified in its reliance on the assurance of the Executive Director of the Navajo Division of Community Development that the prevailing wage rate for the Whitecone Pre-school project had been waived.\\\" PC&M's Brief at 1.\\n. The Court ordered exhibits A through F, and all arguments based on those exhibits, stricken from the record. PC&M Constr. Co., Inc. v. Navajo Nation Department of Financial Services, 1 Nav. R. 72 (1993).\"}"

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+"{\"id\": \"528789\", \"name\": \"Harry Tome, et al., Plaintiffs, v. Raymond Marshall, et al., Defendants\", \"name_abbreviation\": \"Tome v. Marshall\", \"decision_date\": \"1998-11-04\", \"docket_number\": \"No. SR-CV-67-95\", \"first_page\": 569, \"last_page\": 593, \"citations\": \"7 Navajo Rptr. 569\", \"volume\": \"7\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation District Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T21:24:37.695704+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Harry Tome, et al., Plaintiffs, v. Raymond Marshall, et al., Defendants.\", \"head_matter\": \"No. SR-CV-67-95\\nDistrict Court of the Navajo Nation Judicial District of Shiprock, New Mexico\\nHarry Tome, et al., Plaintiffs, v. Raymond Marshall, et al., Defendants.\\nDecided November 4, 1998\", \"word_count\": \"12614\", \"char_count\": \"74051\", \"text\": \"ORDER\\nJudge Lorene Ferguson presiding.\\nTHIS MATTER came before this Court on a Complaint for Forcible Entry and Detainer. The Plaintiffs are also seeking sanctions and further injunctive relief. Upon review of the record and upon having conducted a hearing, this Court makes the following findings:\\n1. In SR-INJ-776-72, a default judgment was entered on December 12, 1974 and the Court ordered a permanent injunction in which the only named Defendant was Raymond Marshall and in which the court ordered the following:\\nMr. Marshall be permanently restrained and enjoined horn verbal and physical harassment of Plaintiffs.\\nMr. Marshall be permanently restrained and enjoined from \\\"interfering with or encroaching upon the grazing rights of the Plaintiffs [and Mr. Marshall shall] forever refrain from trespassing onto Plaintiffs' customary grazing use area, and shall cease any and all attempts at constructing any buildings upon Plaintiffs' customary grazing area....\\\"\\nMr. Marshall [shall] remove trailer house and all related structures and any and all equipment from the present disputed site, at the earliest convenience, to any location near his mother's customary grazing area, provided he shall obtain proper permission and consent before relocating.\\nDefendant shall abide by any and all established grazing and homesite regulations and he shall make all necessary arrangements with the appropriate authorities, to graze his allowable sheep units of 20 sheep units near his birthplace as allowed pursuant to his father's grazing permit and 10 sheep units at Oak Springs as allowed from that original grazing permit obtained horn his spouse's side, and Defendant shall make any and all necessary arrangements to utilize his dual purpose grazing permit on a yearly rotating basis of six months at or near his birthplace near his mother's customary grazing area and six months at or near the Oak Springs area, and all appropriate authorities shall be notified of the arrangement at the earliest convenience.\\n2. In SR-INJ-776-72, the Defendant Raymond Marshall failed to appear and the Court found that sufficient cause had been shown that the Defendant should utilize the said permit according to customary usage of the original permits, mainly on a yearly rotating basis of six months near the disputed area and six months in the Oak Springs area. Mr. Raymond Marshall is the only named Defendant in SR-INJ-776-72. Plaintiff was represented by Charley John.\\n3. In SR-OSC-181-75, an Order to Show Cause was issued to Mr. Raymond Marshall by Judge Joe Benally on July 25, 1975, which was not served, and by Judge Homer Bluehouse on August 08, 1975, which was served upon Mr. Marshall on the same day.\\n4. In SR-INJ-776-72, an order for summary judgment contempt and for seizure was issued by Judge Charley John, and it is not clear whether he was counsel for the Plaintiffs previously. On October 19, 1978, Mr. Marshall was ordered to jail for 90 days by Judge Charley John.\\n5. Judge Perry Garnenez denied Mr. Marshall's motion to correct error on October 24, 1979, ordering that summary judgment remain.\\n6. In SR-CV-312-84, regarding SR-INJ-776-72, an Order was issued on January 10, 1986 by Judge Harry Brown ordering Raymond Marshall and \\\"all relatives and members of his household\\\" to comply with the permanent injunction issued on December 12, 1974. This is the first time other individuals were named Defendants. Also for the first time, the Court began to specify the area as \\\"all relatives and members of his household who occupy and reside on the customary grazing land of the Plaintiff situated east of Mitten Rock and west of the east wing of the Shiprock peak.\\\" The Court further ordered Raymond Marshall and \\\"all relatives and members of his household\\\" to comply with the permanent injunction issued on December 12, 1974 as follows:\\na. Not to verbally, physically harass plaintiffs.\\nb. Not to encroach or trespass upon grazing areas of plaintiffs.\\nc. Cease any and all construction of buildings or other structures upon the grazing area of plaintiffs.\\nd. Remove, within 20 days, from the date of this Order, mobile home and any and all other structures erected on the said grazing area of the plaintiffs.\\n7. A motion for reconsideration was filed and Shiprock District Court Judge Harry Brown denied the motion on February 14, 1986. Mr. Raymond Marshall filed a motion for stay of execution with the Navajo Nation Supreme Court. The Navajo Nation Supreme Court issued an order on March 19, 1986 denying the motion with the following language:\\na. Order from which the motion is based confirms the validity of an Order issued on December 12, 1974.\\nb. Appellant stipulated on January 08, 1988 that he failed to comply with the December 12, 1974 Order and he had been found in contempt.\\nc. No bond was deposited by Appellant Marshall to protect interest of the Appellees.\\nd. It is not in the best interest of the judicial system to delay a valid order.\\n8. This Order was followed with a memorandum decision issued on May 05, 1986. In this decision, the Navajo Nation Supreme Court stated:\\nThe Appellant's argument that because the customary use area referred to in the injunction is not described by boundaries, therefore the injunction should be vacated, is without merit. The parties know the area is disputed and the injunction enjoins the appellants from encroaching and constmcting on the disputed area. The appellants are imputed with knowledge of the disputed area, therefore specifying boundaries in the injunction is unnecessary. Should the parties desire further clarification, then the District Court is the proper forum for that purpose only. The District Court has discretion to clarify that issue without invalidating the permanent injunction.\\nFORCIBLE ENTRY and DETAINER and MOTION for INJUNCTIVE RELIEF\\nThis action came to this Court as a Forcible Entry and Detainer Action. This action is based totally upon the Permanent Injunction entered on December 12, 1974. While it is the intent of a Forcible Entry and Detainer action to be swift and immediate, this Court, while reviewing the record in its entirety, finds the case has a history plagued with disparity. In order to do justice, this Court has carefully reviewed the record.\\nIn Malone v. Yazzie, 1 Nav. R. 88 (1994), the Navajo Nation Supreme Court decided a case involving an on-going dispute over a grazing permit and a home-site lease. The Court stated:\\nA review of the record reveals broader issues than what was originally presented to the Court. The dispute over the homesite lease and grazing permit is a part of a bigger dispute between the parties on appeal, and others, concerning use rights to the land. A decision on the issues of the grazing permit and the homesite lease alone, will not settle the entire matter. For that reason, we believe that the bigger dispute concerning the various parties' alleged interests in the land must be decided before the grazing permit and homesite lease issues can be resolved.\\nId. at 89. Such is the case here. The Forcible Entry and Detainer request relies upon the Supreme Court's decisions regarding the Shiprock District Court's decisions of December 12, 1974 and January 10, 1986.\\nThis Court will not consider whether the December 12, 1974 and the January 10,1986 decisions are valid. The Supreme Court found them valid and entered a decision based upon their validity. The December 12, 1974 decision does the following:\\nDefendant (Raymond Marshall as of December 12,1974) was restrained horn any verbal, physical harassment including bothering and molesting the Plaintiffs and relatives.\\nDefendant was restrained from interfering with or encroaching upon the grazing rights of the Plaintiffs.\\nDefendant was also restrained forever from trespassing onto Plaintiffs' customary grazing use area, and shall immediately cease any and all attempts at constructing any buildings upon Plaintiffs' customary grazing area.\\nDefendant also was ordered to remove trailer house, any and all related structures, and any and all equipment from the present disputed area, at the earliest convenience to any location near his mother's customary grazing area, provided he shall obtain all proper permission and consents before relocation.\\nFinally, Defendant was ordered to abide by any and all established grazing and homesite regulations, and he shall make all necessary arrangements with the appropriate authorities.\\nIn the January 10, 1986 order, the Supreme Court found essentially the same provisions as those set out in the December 12, 1974 order. Upon careful review of the two orders, the injunction issued on January 10, 1986 expanded the parties upon which the December 12, 1974 permanent injunction applies to \\\"all relatives and members of his household.\\\" Also the area which is subject to dispute was narrowed in description as \\\"customary grazing land... situated east of Mitten Rock and west of the east wing of the Shiprock peak,\\\" otherwise referred to as map \\\"O.\\\" The map is not described in detail. The area is excessive, containing about nine townships. Each township is about 36 square miles, each square mile containing 640 acres. Thus, the area referred to in map \\\"O\\\" is excessive, approximately 23,040 acres.\\nThe January 10, 1986 order was the subject of a motion for reconsideration which was denied on February 14,1986. At that time, the Shiprock District Court addressed the issue of including other members of the household and relatives by stating that Raymond Marshall and his family have known for many years of the Court's decision. Stated the Court;\\nRule 18 of the Rules of Civil Procedure provides that an injunction is binding on the parties and on those with actual notice by personal service or otherwise.\\nThe general mle is that one is bound by an injunction even though he is not a party to the suit, therefore, if he has notice or knowledge of the injunction and is within the class of persons whose conduct is intended to be restrained, or acts in concert with such a person. 42 Am. Jur. 2d. Injunctions Sec. 320.\\nActual joinder of the family members was not necessary.\\nThe Supreme Court, in its May 5, 1986 order, also responded to the issue of vagueness raised by the Defendants.\\nThe injunction has been in effect for 11 years. This Court is unpersuaded that after 11 years, the appellants have finally become aware that the injunction is vague. Instead we interpret inactivity for 11 years as an acquiesce by the appellants with the terms of the injunction.\\nThe appellants (Defendants herein) argued to the Supreme Court that \\\"because the customary use area referred to in the injunction is not described by boundaries . the injunction should be vacated.\\\" To this the Supreme Court stated:\\nThe parties know the area in dispute and the injunction enjoins the appellants from encroaching and constructing on the disputed area. The appellants are imputed with knowledge of the disputed area, therefore specifying boundaries in the injunction is unnecessary. Should the parties desire further clarification, then the District Court is the proper forum for that purpose only. The District Court has discretion to clarify the issue without invalidating the permanent injunction. May 5, 1986 Order at 3.\\nWith this brief history, this Court will address the charges set out by the Plaintiffs in this case. The parties summoned to the hearing are Raymond Marshall, Lawrence Marshall, Alice Lee and Rose Taliman as respondents. Each of these persons was charged by the Plaintiffs as follows:\\nThat without authority or without the consent of the Plaintiffs, the Defendants have occupied and controlled the established customary grazing use area of the Plaintiffs.\\nThat the Plaintiffs have made repeated demands for the Defendants to comply with the Court Orders to quit and vacate established customary grazing use area set out as Exhibit O and these demands have been totally ignored.\\nDefendants are illegally holding over and they occupy and control the land.\\nDefendants have publicly announced at the District Grazing Committee meeting and at the Red Valley Chapter meetings they do not intend to comply with any Court Orders.\\nDefendants continue to graze their livestock in excess of their permit and build homes.\\nRaymond Marshall was specifically further charged with the following:\\nRaymond Marshall deliberately damaged a well and water supply used by Plaintiffs and other members of the community by breaking off the shut-off valve which is maintained by the Navajo Nation Water Department.\\nRaymond Marshall and all members of his family have repeatedly threatened, harassed and intimidated the Plaintiffs and their family members by \\\"gestures and word of mouth.\\\"\\nThe Plaintiffs are further requesting that this Court enter permanent injunctive relief restraining Defendants from further threatening, harassing, intimidating and making physical contact with the Plaintiffs and members of their families, employees or representatives, and from causing bodily injuries to their persons or to their properties, including livestock.\\nA hearing was held on October 12, 1995, at which time Raymond Marshall, Lawrence Marshall, Rose Taliman and Alice Lee appeared and presented testimony. Also present were Plaintiffs Marshall Tome, Harry Tome and Kenneth Benally who also presented testimony.\\nDECEMBER 12, 1974 PERMANENT INJUNCTION\\nIn order to see if the permanent injunction of December 12, 1974 was violated, this Court had to review the alleged violation in each of the Defendants'cases in light of the testimonies and evidence submitted to this Court.\\nSince this matter was brought to Court on a Forcible Entry and Detainer, this Court must look to 16 N.N.C. Sec. 1803. 16 N.N.C. Sec. 1803 requires that the complaint contain a description of the premises of which possession is claimed in sufficient detail to identify them, and that the complaint shall also state the facts which entitle plaintiffs to possession and authorize the action. It is the December 12,1974 permanent injunction and other subsequent orders which are the basis of the Forcible Entry and Detainer Action. Despite the requirements of section 1803, the Plaintiffs did not describe in sufficient detail the premises. It does not appear that a description was submitted to the Court until the filing of the complaint for Forcible Entry and Detainer. In fact, the courts previously entered orders without description of the land in dispute. The complaint in this present case alleges that Defendants have been demanded to quit and vacate the established customary grazing use area of the Plaintiffs and as supporting document, the Plaintiffs submitted the map described as \\\"Exhibit O.\\\"\\nAt the hearing, the Plaintiffs testified to the area they claimed. Plaintiffs are claiming an area which appears to overlap with an area claimed by other permit-tees. In addition, the land claimed by Plaintiffs encompasses a settlement from which the Defendants, except Alice Lee, were removed pursuant to the December 12,1974 Order. Ms. Lee testified they were bom and raised at that settlement. It is disputed that this settlement is the area in which Alice Lee's father had a grazing permit and it may be the area described as Defendant's birthplace.\\nThis Court is required to make a decision on whether Defendants' Forcible Entry and Detainer should be granted. The Plaintiffs allege that Raymond Marshall, Lawrence Marshall, Rose Taliman, and Alice Lee occupy and control the established customary grazing use area of the Plaintiffs to the detriment of the Plaintiffs, that the Defendants continually hold over, occupy and control land, that Defendants defy the orders of the court by controlling property to the exclusion of Plaintiffs, that the Defendants have publicly announced at the Grazing Committee meetings and the Red Valley Chapter meetings that they do not intend to comply with any court orders, and that the Defendants continue to graze their livestock in excess of their permits and build homes and other structures without homesite leases. Plaintiffs are further alleging that Raymond Marshall damaged the well and water supply used by the Plaintiffs by breaking the shutoff valve causing water waste. Finally, Plaintiffs allege that Raymond Marshall and all his family members repeatedly threatened, harassed and intimidated Plaintiffs by gestures and by \\\"word of mouth.\\\"\\nTESTIMONY TAKEN BY THE COURT\\nMr. Raymond Marshall\\nRaymond Marshall testified as follows: Raymond Marshall has moved off the area alleged as Plaintiffs' customary grazing area about five/six years ago. Mr. Marshall presently lives about three miles off the highway and he has lived there for five years as of March 07, 1995, and he lives there alone with his wife. Mr. Marshall testified that while he obtained approval for a home site lease from the chapter, the homesite lease has not gone through the process to obtain the chairman or Bureau of Indian Affairs (BIA) approval as it has been held up because of the dispute. Mr. Marshall testified that while he is off the disputed area, the boundary line is close to where he presently lives and that the boundaries are not clear.\\nMr. Marshall also testified that he keeps twenty (20) head of sheep and thirty (30) head of goats and five (5) cows and that he sells them periodically, and the total herd size regularly decreases.\\nMr. Marshall indicated he goes through the disputed area almost daily as there is a road in that area open to the public. He further testified that there is a water well in the disputed area where the livestock drink water and that he keeps his livestock within the area where he presently lives. He stated that there is a windmill in the disputed area which pumps water and that there is no other water in the area and that the water is for use by local people and that the other closest water well is about four miles away.\\nMr. Marshall also testified that he does not harass or threaten any of the Plaintiffs and that he does not see them and that neither Marshall Tome nor Kenneth Benally live in the area. He stated that when he does meet any of the Tomes, they ignore one another.\\nMr. Marshall testified further that while he is limited to twenty (20) sheep units, the sheep units of his livestock periodically reaches a total of seventy (70). However, he keeps the size down by selling his livestock regularly. He also indicated that his children have a grazing permit for ten (10) sheep units and that he has kept his son, Lawrence's livestock, which are two (2) horses. He stated that these livestock graze in the area and that they sometimes go into the disputed area. He was asked that if the boundary was fenced in, would he like it? He stated that he would like it, \\\"... but if I fenced it in, I would get blamed again if I approved it myself and if the people from the area want a fence, its up to them \\u2014 if they say so, it's okay; a lot of people live here, many are related to me, my brothers and sisters (clanwise).\\\"\\nMr. Marshall also testified that his son, Lawrence, lived in Oalcsprings and has lived there since 1990. He also testified that Alice Lee still lives on the disputed land and that she has a few head of sheep which are corralled in, and that she has no cows and no horses. Mr. Marshall also testified that Rose Taliman is his daughter and she resides in Oalcsprings and that she moved to Oalcsprings after their family members were asked to leave.\\nMr. Marshall has cows which are all red except one with a white face. He testified that the earmarks identified by Mr. Harry Tome are not his and that the cows in the photo, submitted to the court as Exhibit Q, are not his cows and that they belong to someone else. He stated, \\\"Mine are fat, these are skinny.\\\"\\nWhen asked specifically about where he was between 8:00 and 9:00 o'clock A.M. on August 27, 1995, Mr. Marshall stated he did not remember. When told that he was blamed for shooting a gun in the helium plant area, Mr. Marshall stated he was not there shooting a gun and that he has \\\"not shot a gun in quite a while.\\\" He further stated that he does own a \\\"30-30\\\" and had used it previously to shoot at coyotes. However, he testified that a long time ago he did chase a coyote into the helium plant area, but he stated, \\\"Harry knows that, that it was not recent.\\\"\\nMr. Lawrence Marshall\\nMr. Lawrence Marshall testified that he lives three miles north of the trading post in Oalcsprings and that he has lived there for over four years. Prior to that time, he lived at Mitten Rock where there is the land dispute at subject in this case. He stated that he has a grazing permit for ten (10) sheep units and that he has five (5) horses of which two (2) are kept at his father's present living area and three (3) are at Oalcsprings. He further stated that he has sold all of his sheep. He testified that before he sold his sheep he did keep them at his father's area. He also testified that he has two horses and six cows at his father's area, and that the brands he uses are Q/AC and UDP RQ.\\nHe testified that he did not harass or use abusive language to the Plaintiffs and that he does not visit them and that they do not talk to one another.\\nHe stated he lives at Oalcsprings and would like to live near his father at his present living site. He further testified that Rose Taliman is his older sister and that she does not have any livestock. When asked if Rose Taliman had a horse trailer, Mr. Marshall stated he did not think she had a horse trailer. However, when he was asked if Rose owned a house trailer (mobile home) he testified that she did and that the house trailer (10 x 40) was parked at Mr. Raymond Marshall's present living area, off the disputed area. He also testified that his father has the following vehicles: a 1972 brown and white pick-up, a 1984 silver van, a 1978 or 1976 brown and white car and 1980 white Ford car.\\nMrs. Rose Taliman\\nMrs. Taliman testified as follows: She lives in Oaksprings outside the disputed area and that she moved there in 1970 when they were \\\"chased out.\\\" She stated that her trailer is still parked at her father's living area. Mrs. Taliman stated that all the windows to her trailer have been broken and the door has become loose and the trailer has no wheels. She also stated that she lived in low-rent housing in Shiprock prior to moving to Oaksprings. She stated she does not own any sheep, horses, or cows.\\nShe testified that she did not harass or threaten the Plaintiffs. Rather, in My 1989, she stated that Marshall Tome came at her with a car while she was on the grazing area and that she went to her father's place. No witnesses were presented to support this. She stated that she does not bother the Plaintiffs and allegations of harassment and threats by her are not true. Mrs. Taliman stated she did not do \\\"what I am being blamed for; it's not right.\\\" When asked by Plaintiffs' attorney whether or not she was thinking of moving back to her father's present living area, she stated in Navajo that the area from which she was removed is where her footprints start. She stated that she visited with her parents often and that she would like to live near her parents.\\nMr. Harry Tome\\nPlaintiff Harry Tome testified as follows: That he lives at Mitten Rock and that his parents lived there and that he lives 1/4 mile from the paved highway (M-13 -BIA). Mr. Tome referred to Map O which was introduced into evidence for limited purposes of discussion and not for the truth. Mr. Tome testified that the area described as the disputed area is \\\"our assigned grazing area\\\" belonging to him, Marshall Tome and Kenneth Benally. No testimony was presented to support the assignment.\\nMr. Tome testified that the area was designated by his father and mother and that the area is identified as .0681, based upon a permit which was not introduced as evidence.\\nMr. Tome stated that besides his family, Alice Lee still resides on the disputed area and he sees her and her family everyday. He also testified that she lives in a little house and that her children are constructing another home. Mr. Tome stated that when his cows go into the area where Alice Lee lives, he goes to get his cows and he sees their housing structures.\\nMr. Tome described a small house and another structure being built. He stated that there is also a sheep corral and altogether there are three (3) structures. Mr. Tome further testified that Alice Lee does own livestock, eleven (11) last year and nine (9) at the time of the hearing. Mr. Tome also testified that Alice Lee does not have cows or horses.\\nTo support this testimony, Mr. Tome introduced into evidence pictures his brother, Marshall Tome, took of some livestock he claimed belonged to Alice Lee.\\nMr. Tome does not know why Alice Lee has not moved off and he testified that he wants her to move off the land.\\nMr. Tome further testified that Mr. Raymond Marshall goes north into the area where the Tomes' livestock graze and sometimes he takes his sheep to the water area. Mr. Tome described Mr. Marshall's cows as red, gray (white) and black. When asked about Mr. Marshall's brand, Mr. Tome stated that he was not aware of Mr. Marshall's brand but that Mr. Marshall tells the grazing committee at roundup that he has a brand. Notwithstanding this, Mr. Tome stated he knows which cows belong to Mr. Marshall and that he sees these cows at the water area at least once a week and that Mr. Marshall drives them home.\\nMr. Tome further testified that he is aware of eleven (11) cows which belong to Mr. Marshall. He also introduced pictures which he claims are pictures of cows belonging to Mr. Marshall. Mr. Tome stated he knows these cows belong to Mr. Marshall based upon the cut of the ears. However, when cross-examined regarding the earmarks, Mr. Tome stated he knew the earmarks belong to Mr. Marshall because when they go to get water \\\"I see them, they are like that.\\\" When asked if he knew the Marshall brand, Mr. Tome stated, \\\"No, I don't know that.\\\"\\nMr. Tome also submitted to the Court pictures of houses he claimed belong to Mr. Marshall. Mr. Tome further testified the pictures of the livestock were taken within the disputed area.\\nMr. Tome also testified that he attended a school board meeting in Red Valley and while he was there making a school board report, he was harassed and threatened. He further testified that at chapter and Grazing Committee meetings, since 1990, he was harassed and threatened several times in a row. All in all, he claims he was harassed and threatened a total of (16) sixteen times since 1990, up to a week before his testimony. Mr. Tome did not specify what was said or by whom other than to state, \\\"they talk about us; he is like this and he chased us off our land and up to this day he is not sympathetic.\\\" Mr. Tome indicated that Raymond Marshall and Rose Taliman made such statements. Mr. Tome further stated that at the District Grazing Committee meetings \\\"they say they (Tomes) killed cows and sheep.\\\"\\nMr. Tome testified that \\\"they don't really say how they would harm me, but they call me a liar, a cheat.\\\" Mr. Tome testified that Mr. Marshall does not speak to him with respect and that Mrs. Taliman at school board meeting stated \\\"you are like this, you are not kind to people, you are like that, you are difficult.\\\" The school board had to close the meeting because she created a disturbance. Since 1990, she has done this about (6) six times and these incidents occurred outside the Red Valley Chapter House. While Mr. Tome testified to the above, no witnesses were presented to support this testimony.\\nMr. Tome stated that sometimes when he goes after the sheep, he can hear people yelling at him. He also stated that Rose Taliman has made gestures at him with her fingers. Mr. Tome stated that he knows Rose Taliman is the one who yells because she would be close by in a car. When asked about her vehicle, Mr. Tome stated that Mrs. Taliman would drive different vehicles and he would see her driving the different pick-up trucks.\\nMr. Tome stated that in the most recent occurrence, he recognized Rose Taliman and claimed her children talked awful to Mr. Tome's worker and that they were driving a red and white truck. There was no testimony as to what was actually said.\\nMr. Tome also testified that at the election campaign meetings they said \\\"let's do this to him.\\\" (It is not clear as to what would be done.) Mr. Tome stated he did not hear Mr. Marshall say this and he stated Rose Taliman was there. Mr. Tome stated he was not harmed physically by anyone.\\nHe also testified that on July 18, he became aware of damage to the shut-off valve and stated \\\"his workers (Tome's)\\\" had taken it apart. Mr. Tome stated that the one who damaged the shut-off valve was Raymond Marshall, as \\\"his car tracks were there.\\\" When asked if Mr. Raymond Marshall used the water, too, Mr. Tome stated, \\\"Yes, he's the one who broke it down.\\\"\\nUpon cross examination, however, Mr. Tome did state that people other than Mr. Marshall lived in the area and their livestock also come into the disputed area to water.\\nMr. Marshall Tome\\nMr. Marshall Tome testified as follows: Mr. Tome stated that he took the pictures marked as Exhibits P, Q and R, and that they are pictures taken in the disputed area on October 05, 1995. In Exhibit P, Mr. Tome testified that the picture represented a structure in Alice Lee's living area. In Exhibit Q, Mr. Tome testified that the picture represented Raymond Marshall's cows along side the road. Mr. Tome stated he did not see any brand but \\\"we just know it (sic) is (sic) their cows.\\\" In Exhibit Q, Mr. Tome testified that the picture represents Raymond Marshall's house, outside the disputed area. Mr. Tome also testified that Exhibit S represents another picture of Marshall's houses, again outside the disputed area. Mr. Tome testified that Rose Taliman's trailer is also shown in the picture, also outside the disputed area.\\nMr. Kenneth Benally\\nMr. Kenneth Benally also testified. He is a Plaintiff and a brother to both Harry and Marshall Tome. Mr. Benally testified that on August 26, 1995, his little brother's son, Jeff Tome, called him asking him to help brand calves and that on August 27, 1995, on a Sunday, they agreed to meet at the windmill after \\\"splitting\\\" up to get cattle. Upon splitting up, Mr. Benally testified that he went around the road, staying on the tracks, because it rained on Saturday night. Mr. Benally stated, \\\"I left my truck there and I started to herd cattle on foot and then I was going east toward the helium plant and I saw a pick-up truck parked along the road.\\\" Mr. Benally stated that he heard shooting which sounded like a .22 pistol or a .22 rifle and he stated it didn't bother him as he figured it was someone target practicing. Mr. Benally further testified as he herded the cattle past the pickup truck, he continued to hear the shooting. When asked which way they were shooting, Mr. Benally stated \\\"I don't know which way they were shooting, I know if it was shot at me. I can sense it, but it wasn't.\\\" Mr. Benally stated he then went back to his own car and said, \\\"I'm going to find out who the heck that is shooting around, shooting at what.\\\" At which point, he testified he got back into the car and drove off. He stated he recognized the pick-up truck which was tan and off-white with a little darker color on the side.\\nHaving forgotten the brand, Mr. Benally testified that he went back to Harry's house and on the way back, he saw Raymond Marshall driving the same pick-up truck and that they passed each other, \\\"I was going west and he was coming east on the roadway.\\\" When asked if it was the same pick-up from which he heard shooting, Mr. Benally stated, \\\"I don't know what the motive was - trying to scare me or what. I don't have any idea.\\\" Mr. Benally stated he heard about nine shots. When asked if he was ever harassed or threatened by Mr. Marshall, Mr. Benally stated, \\\"just from what I am told.\\\"\\nWhen asked about the road, Mr. Benally stated there are trails in the area and that the road/trails upon which he was driving led to the helium plant and that one road/trail led right down toward Alice Lee's home. Mr. Benally also testified that he is quite knowledgeable about guns and the sounds of guns, as he served in the military for four and half years (4 V2) years and the shots he heard were from either a .22 pistol or a .22 rifle.\\nMrs. Alice Lee\\nAlice Lee testified that she is married to Paul Lee, Jr. and that she has nine children and that her husband retired from the BIA in April, 1995. Mrs. Lee testified that she lives on the disputed area in a one-bedroom house which she has lived in for a very long time and that it belonged to her mother and father who are deceased. Her father, Marshall Hathalie, died 28 years ago (as of October 1995) and her mother, Lucy Hathalie, died 18 years ago (as of October 1995). Mrs. Lee testified that Raymond Marshall is her older brother. When asked whether her parents lived anywhere else, Mrs. Lee stated, \\\"just right there,\\\" referring to her present site. Mrs. Lee stated she was bom, raised, and nurtured there and that she did not go to school. Mrs. Lee stated in Navajo, \\\"We were raised there. Right there we bonded to the land.\\\"\\nMrs. Lee stated that a house with three bedrooms was built in 1986. However, the house lacks electricity and water because of the problem regarding the dispute. Therefore, no one lives in the house. The Tomes have put a \\\"stop to it\\\" because of the dispute. In addition, there is a third structure on the land where she dwells, a house being built by her children.\\nMrs. Lee stated, in addition to the three dwelling structures, there are two sheds for storage, two old cars, which belong to her son, and a narrow sheep pen, about twenty feet long, in which she keeps nine sheep. Mrs. Lee stated she has a grazing permit for sixty-nine (69) sheep units, which she got from her husband, for an area six to seven miles from where she presently lives. Mrs. Lee stated she does not have any cows, horses or goats.\\nAlice Lee appeared pro se and upon hearing testimonies and receiving photographs, this Court finds that Alice Lee, who is a sister to Raymond Marshall, was not initially named as a party to the ongoing case until the 1995 summons, the subject of this case.\\nMrs. Lee testified in her closing statement that she has a grazing permit for the area she now lives on. She stated she was told to take care of the land and that she is 60 years old as of October 1995 and that, by clan, the Plaintiffs are her older brothers.\\nISSUES TO BE ADDRESSED\\nThe following issues need to be addressed:\\n1. Whether each of the Defendants is out of compliance with permanent injunction and subsequent order as charged by the Tome brothers so as to be guilty of Forcible Entry and Detainer.\\n2. Whether the land upon which Alice Lee presently resides and upon which her siblings and parents resided were ever part of the area subject to claim by the Plaintiffs.\\nCOURT'S FINDINGS\\nRaymond Marshall's Occupation and Control of Area Claimed by Plaintiffs; Harassment; and Water System Damage\\nMr. Raymond Marshall demonstrated to this Court that he does not live on the disputed area claimed by the Plaintiffs. This Court does not find that Mr. Raymond Marshall occupies and controls the established customary grazing area claimed by the Plaintiffs. This Court does not find that Mr. Raymond Marshall continues to illegally hold over, occupy and control land to the exclusion of the Plaintiffs. All of the Plaintiffs testified they have access to the area. Further, there has been no showing that Mr. Marshall has publicly announced that he would not comply with the Court orders.\\nWhile Mr. Harry Tome testified about having been harassed and threatened, he could not say whether Mr. Marshall made any specific statements nor could he pinpoint where these statements were made. He merely stated that \\\"they talk about us, he is like this and he chased us off our land and up to this day he is not sympathetic,\\\" referring to what was said about him. No witnesses to corroborate his statements were brought before the Court. Furthermore, when asked specifically about how the Plaintiffs were harassed and threatened, Mr. Tome stated, \\\"they don't really say how they would harm me, but they call me a liar, a cheat.\\\"\\nAs to Mr. Marshall's role, Mr. Tome made general statements such as he knows that Raymond Marshall and Rose Taliman make statements. Mr. Tome further testified that Mr. Marshall does not speak with respect and that Mrs. Taliman, at school board meetings, says \\\"you are like this, you are not kind to people, you are like that, you are difficult,\\\" and that the school had to close meetings because of the disruption. Again, no witnesses were presented to corroborate these statements.\\nMr. Tome did testify that on an election campaign, \\\"they\\\" said, \\\"lets do this to him.\\\" (It was not clear who \\\"they\\\" were and what would be done.) However, Mr. Tome stated he did not hear Mr. Marshall say this.\\nMr. Kenneth Benally did testify that Mr. Marshall was shooting a gun in the helium plant area on or about August 27, 1995. On one hand, Mr. Benally stated that upon hearing gunshots, he was not bothered as he figured it was someone target shooting. On the other hand, he indicated he was bothered when he saw a truck which he testified belonged to Mr. Marshall and when he realized it was Mr. Marshall driving the truck. When asked if it was the same pick-up from which he heard shooting, he stated \\\"I don't know what the motive was - trying to scare me or what. I don't have any idea.\\\" To this Mr. Marshall stated he does not remember what he was doing on August 27, 1995 between 8:00 to 9:00 o'clock a.m., but that he was not at the helium plant area shooting guns. Stated Mr. Marshall, \\\"I have not shot a gun in quite a while.\\\" Mr. Marshall admitted to owning a 30-30 which he used previously to shoot at coyotes. He also admitted that he did chase a coyote into the helium plant area, but it was a long time ago, and he stated \\\"Harry knows that.\\\" Mr. Benally, on the other hand, claims to be very knowledgeable about guns and the sounds they make. Mr. Benally testified that the shots he heard were from a .22 pistol or rifle. No witnesses were produced to support either Mr. Benally or Mr. Raymond Marshall. This Court is satisfied that Mr. Raymond Marshall was not shown to have harassed or threatened the Plaintiffs as alleged by the Plaintiffs. This Court also finds that Mr. Raymond Marshall has not built any structures in the disputed land area.\\nFurthermore, this Court is not satisfied that Mr. Marshall deliberately caused extensive damage to a well and water supply by breaking the shut-off valve. While Mr. Tome testified that Mr. Raymond Marshall's tire tracks were there, there were no witnesses or evidence submitted to support that allegation.\\nMr. Tome further testified that other people also use the water well. While no evidence was presented regarding the well being private property of the Tomes, it was made clear to the Court that the Navajo Nation maintained the well, contradicting that the well is in the Tome's sole use, exclusive to other users, including Mr. Marshall.\\nMr. Marshall did admit to periodically exceeding the sheep units allowed on his grazing permit. Furthermore, Mr. Marshall also admitted that his livestock roam into the disputed area in order to obtain water from the windmill which he believes is public. No permits were submitted to this Court to either support or to counter either the Plaintiffs' or the Defendants' claim.\\nMr. Lawrence Marshall's Occupation and Control Over Area Claimed by Plaintiffs to the Detriment of Plaintiffs; Harassment; and Water System Damage\\nThis Court is satisfied that Lawrence Marshall has moved from the disputed area and that Lawrence Marshall does not occupy and control the established customary grazing use area to the detriment of the Plaintiffs. This Court is further satisfied that Mr. Lawrence Marshall does not continually hold over, occupy and control land.\\nFurthermore, this Court is satisfied that Lawrence Marshall has not defied the Court order by controlling property to the exclusion of the Plaintiffs. There is no showing that Lawrence Marshall announced publicly at a District Grazing Committee meeting and at a Red Valley Chapter meeting that he does not intend to comply with the Court orders.\\nMr. Lawrence Marshall did testify that he has six (6) cows and two (2) horses which were at his father's house as of the date he testified. Mr. Raymond Marshall testified that he has a grazing permit for twenty (20) sheep units and that his son, Lawrence Marshall, has a grazing permit for ten (10) sheep units.\\nThe Plaintiffs have pointed out that because Mr. Lawrence Marshall's livestock graze and water in the disputed area, they are in violation of the December 12, 1974 order and subsequent Court orders and, therefore, the Court should sanction them. In addition, the Plaintiffs allege that the Marshalls are in violation of the orders because the number of sheep units are in excess of the permits. This is included as an item for discussion below.\\nMrs. Rose Taliman's Occupation and Control of Area claimed by Plaintiffs; Harassment and Water System Damage\\nThis Court finds that Rose Taliman has moved off the area claimed by the Plaintiffs and that she does not occupy and control the area to the detriment of the Plaintiffs. Nor does this Court find that Rose Taliman illegally held over, occupied and controlled the claimed area to the exclusion of the Plaintiffs.\\nPlaintiffs' charge that Rose Taliman publicly announced at the District Grazing Committee meetings and the Red Valley Chapter meetings that they (the Marshalls) do not intend to comply with any Court orders. Plaintiffs also charge that she has repeatedly threatened, harassed and intimidated Plaintiffs and family members by gesture and by word of mouth. Rose Taliman denied she has harassed or threatened the Plaintiffs. The only question raised by the Plaintiffs' counsel was \\\"you told us you don't use abusive language\\\" to which Rose Taliman answered \\\"yes.\\\" Rose Taliman was not questioned regarding her alleged role in the harassment, intimidation and threatening charges by the Plaintiffs, which were alleged to have taken place at the chapter meetings, grazing meetings and school board meetings. No other witnesses were produced to support the allegations.\\nLikewise, Ms. Taliman was not asked about her alleged finger gesture, Thus, this Court is not satisfied that Ms. Taliman did harass, intimidate or threaten the Plaintiffs.\\nGRAZING and WATERING LIVESTOCK on DISPUTED AREA\\nThis Court finds that livestock belonging to both Raymond and Lawrence Marshall do periodically graze and water on the disputed area. Alice Lee does live in the area claimed by the Plaintiffs. Mrs. Lee also admitted to having nine head of sheep on her living site, which is located on the area presently disputed.\\nThe December 12,1974 Order recites the following regarding the grazing permits of Mr. Marshall. Stated the Court in its findings at four and six:\\n4. That the Defendant [Mr. Marshall] has a grazing permit for 30 sheep units, 20 sheep units near the disputed area and 10 sheep units from the Oaksprings area and sufficient cause has been shown that the Defendant should utilize the said permit according to customary usage of the original permits. Mainly on a yearly rotating basis of six months on the Oaksprings area.\\n6. That the Defendant should move the trailer house and other structures which are presently located on Plaintiff's customary grazing area to a location near Defendant's mother's customary grazing area, provided he does so with permission.\\nIn the same order, the Court further stated:\\nIt is further ordered, adjudged and decreed that the Defendant shall abide by any and all established grazing and homesite regulations, and he shall make all necessary arrangements with the appropriate authorities, to graze his allowable sheep units of 20 sheep units near his birthplace as allowed pursuant to his father's grazing permit and 10 sheep units at Oaksprings as allowed from that original grazing permit obtained from his spouse's side, and Defendant shall make any and all necessary arrangements to utilize his dual purpose grazing permit on a yearly rotating basis of six months at or near his birthplace near their mother's customary grazing area and six months at or near the Oaksprings area, and all appropriate authorities shall be notified of this arrangement at the earliest convenience.\\nSince this Court Order and the January 10, 1986 Court Order are valid, the present cause of action must be received in light of these Orders. This Court will look first to the December 12, 1974 Order to determine whether there were any violations of the permanent injunction presently in place regarding grazing and use of the water well.\\nMr. Lawrence Marshall did admit to having two (2) horses at his father's present living site. According to testimony given by Mr. Raymond Marshall, the livestock which are under his care do roam onto the disputed area in order to water at the well.\\nThe January 10, 1986 Order and the subsequent Orders exclude the language set out in the December 12, 1974 Order regarding Mr. Marshall's father's and mother's grazing area. The latter altogether refrains Mr. Marshall and relatives from encouraging and/or trespassing upon the grazing area of the Plaintiffs. This Court is charged with reviewing the orders and the testimony given.\\nWhile the Court Order dated December 12, 1974, indicates that Mr. Raymond Marshall does have a permit for 20 sheep units near the disputed area, it does not specify how near. Nor does it specify whether, if indeed Mr. Raymond Marshall has a sheep permit on the disputed area, he would be allowed to graze his livestock in the area, including the area claimed as customary use area by the Plaintiffs. The order also does not specify whether the windmill is for Plaintiffs' exclusive use or whether it is one set up for all people in the area including the Marshalls and the Lees.\\nThe December 12,1974 Order allows Mr. Marshall to graze his 20 sheep units near his \\\"birthplace as allowed pursuant to his father's grazing permit... and to graze (for six months) at or near his birthplace near their mother's customary grazing area.\\\" Review of the records, testimony and evidence taken by the Court do not clarify where Mr. Raymond Marshall's father's grazing permit allows grazing, where Mr. Marshall's mother's customary grazing area is and where Mr. Marshall's birthplace is, other than testimony given by Alice Lee in which she states that she and her siblings (including Raymond Marshall) were bom and raised in the area where she now resides.\\nBecause the record is not clear and the only relevant testimony given was by Mrs. Alice Lee, to the effect that she presently resides on land on which her late parents resided and on which she was bom, it can only be presumed that the land on which Mrs. Lee resides may also be the birthplace of the Defendant, Mr. Raymond Marshall. Given this, Mr. Marshall may have rights to graze a limited head of sheep in the area, if indeed the land off which Mr. Marshall was forced is the same and subject to the grazing permit presently held by Mr. Marshall. The December 12,1974 Order states, \\\"Defendant should utilize the said permit according to customary usage of the original permits.\\\" At Item 4 of the December 12, 1974 Order. At Item 6, it further states, \\\"[Defendant] . shall malee all necessary arrangements . to graze his allowable sheep units of 20 sheep units near his birthplace....\\\" There was no testimony presented in regards to actual grazing permits.\\nIf indeed Mr. Raymond Marshall has a grazing permit in the area and he is one of the permittees in the area having access to the wells established and maintained by the Navajo Nation, then he would not be in violation of the December 12, 1974 Order when his livestock roam onto the area claimed by Plaintiffs as their exclusive grazing right to water.\\nMr. Lawrence Marshall did testify that he has previously kept ten (10) sheep and two (2) horses at his father's residence. Mr. Marshall also stated that he has a permit to graze ten (10) sheep units but it is not clear where the grazing area is located for these ten (10) sheep units. In addition, Mr. Marshall stated that he has five (5) horses, two (2) of which are kept at his father's present living area.\\nA grazing permit gives one the right to use the land for grazing. Grazing permits are issued utilizing sheep units. However, grazing lands are not limited to sheep alone. Horses and cows may also be grazed. For example, one (1) horse is equal to five (5) sheep units. 3 N.N.C. Sec. 708; In Re: Mary Ellis Joe's Customary Use Area, No. SR-CV-949-83. Here, if indeed, Mr. Lawrence Marshall's grazing permit for ten (10) sheep units is within the disputed area, then the two (2) horses kept in the area by his father, Mr. Raymond Marshall, based on the ten (10) sheep units would not be in violation of the December 12,1974 Order. Nor would such grazing be in violation of the subsequent order, since these orders are based on the December 12, 1974 Order. If, however, the ten (10) sheep units are from an area outside the disputed area, then there may be a violation, depending upon where the ten (10) sheep units area is located. Crossing the disputed area to get to the water well may or may not be a violation, depending upon where the ten (10) sheep units area is located and also depending upon whether the water system was intended for all livestock covering an entire area.\\nFinally, the December 12, 1974 Order requires the Defendant \\\"to make arrangements to utilize his dual purpose grazing permit on a yearly rotating basis of six (6) months at or near his birthplace near their mother's customary grazing area and six (6) months at or near the Oaksprings area, and all appropriate authorities shall be notified of this arrangement at the earliest convenience.\\\" It is not immediately clear as to what this means. It may intend to refer to the equivalent of seasonal grazing, as provided for in 3 N.N.C. Sec. 708.\\nThe law of grazing permits is set out in 3 N.N.C. Sec. 701 et. seq. Section 708(c) states, \\\"No person can hold a grazing permit in more than one district on the Navajo reservation.\\\" The December 12, 1974 Order would not be in compliance with this section if Mr. Raymond Marshall's permits are for two districts, unless they are considered seasonal grazing permits, pursuant to 3 N.N.C. Sec. 708.\\nThus, the December 12, 1974 Order must be read in light of the Navajo law. In effect, the December 12,1974 Order requires the Defendant to utilize his permit on a rotating basis of six (6) months at or near his birthplace, near his mother's customary grazing area, and six (6) months at or near Oaksprings area. Such order may be lawful only if pursuant to 3 N.N.C. Sec. 708. Presently, it is unclear to this Court whether the subject permit is seasonal. Even if the permits in question are seasonal grazing permits, they must be used in accordance with the law. Thus, use on a rotating basis is valid only so long as Mr. Marshall's permit allows seasonal grazing.\\nThis Court cannot determine whether Mr. Raymond Marshall and Mr. Lawrence Marshall are violating the December 12, 1974 Order based upon the information submitted. It may be argued that the Marshalls are violating the subsequent orders. However, the subsequent orders build upon the December 12, 1974 Order and, therefore, violation allegations must be read in light of the December 12, 1974 Order.\\nFurthermore, even if we were to assume that Alice Lee was included as a party, as of December 12,1974, the question remains whether the land upon which she resided then and upon which she resides now is subject to claim by the Plaintiffs. Alice Lee, as a named party, is charged with occupying and controlling the established customary grazing use area of the Plaintiffs' since the entry of the Permanent Injunction of December 12, 1974. Plaintiffs allege that she continues to do so illegally and that despite their repeated demands for Mrs. Lee to comply with the Court Order and vacate the \\\"established\\\" customary use area, she has ignored the demands and continues to illegally hold over, occupy and control said land to the exclusion of the Plaintiffs.\\nMrs. Lee testified that she has been living on the land upon which she now resides with her family before and since the death of her parents. Prior to that time her parents resided on the land, as she and her siblings, including Raymond Marshall, were bom and raised there. It is not clear as to the exact area on which this family resided upon and used other than the present living site. If indeed Mrs. Lee was bom and raised where she now resides, then it is possible that the area upon which Mrs. Lee presently resides was never part of the customary use area presently claimed by the Plaintiffs. Therefore, as of December 12, 1974, the area upon which Mrs. Lee presently resides was never part of the land from which Mrs. Lee can be enjoined or from which she can be removed. It follows that if Mr. Raymond Marshall was also bom and raised in the same area, then the area upon which he lived was never part of the customary use area of the Plaintiffs.\\nBased on this, clearly the land upon which Mrs. Lee continues to reside was never part of the customary use area claimed by the Plaintiffs. For this reason, Mrs. Lee is not illegally holding over. There was no testimony offered by the Plaintiffs to the contrary. Thus, this Court does not find Mrs. Lee to be occupying and controlling land she resides upon to the detriment or exclusion of the Plaintiffs.\\nWhile the Plaintiffs' father charged that the Defendants, including Alice Lee, have publicly announced at District Grazing Committee meetings and Red Valley Chapter meetings that they do not intend to comply with the Court Orders, no evidence or testimony was given to show Mrs. Lee was involved. Nor has there been any testimony or evidence given to support the allegation that Mrs. Lee threatened, harassed or intimidated the Plaintiffs.\\nMrs. Lee admitted she was bom and raised in the area upon which she continues to live, within the area in dispute. This Court is aware, based upon the records and testimony, that Mrs. Lee was named a party for the first time in this Forcible Entry and Detainer action. Thus, although Mrs. Lee was never initially given notice, she was later included as a party. This issue was raised and addressed in the February 14, 1986 Order issued by Judge Harry Brown. Judge Brown stated as follows:\\nAlthough Mr. Marshall may not have standing to raise the issue, service upon the family members of Defendant was not required, in order to issue the Writ of Assistance. Raymond Marshall and his family have known for many years of the Court's decision. Furthermore, Rule 18 of the Rules of Civil Procedure provides that an injunction is binding on the parties and on those with actual notice by personal service or otherwise. At item 6.\\nThe Court then went on to cite 42 Am. Jur. 2d. Injunctions Sec. 320.\\nHowever, it is not clear to this Court whether the parties included as members of Mr. Marshall's family included Alice Lee as of February 14, 1986. Mrs. Lee indicated to this Court that she was never involved in this matter until four (4) weeks ago as of October, 1995 at which time she was told to pay $100.00. A default judgment can be entered against only persons who have been both properly named as parties and properly served. 46 Am. Jur. 2d. Judgments Sec. 277. Even if Alice Lee was a proper party, this Court does not find her in violation of Forcible Entry and Detainer laws.\\nBased on the above findings, this Court is satisfied that the named Defendants are not in violation of the Forcible Entry and Detainer laws, pursuant to 16 N.N.C. Sec. 1801 etseq.\\nNAVAJO NATION GRAZING POLICIES\\nThe facts so far presented must be viewed in light of any Navajo Nation policies regarding grazing rights. Thus, this Court, in order to address this continuing problem, must look to the policies of the Navajo Nation regarding grazing. This Court is also required to look to the grazing policies in order to establish boundaries.\\nIn, In Re: Mary Ellis Joe's Customary Use Area, District 9, Shiprock Agency, Navajo Nation, No. SR-CV-949-83, the Shiprock District Court judge stated:\\n1. A grazing permit gives one the right to use the land for grazing, however, \\\"no person is entitled to more range area than needed to support the number of livestock allowed on his or her grazing permit\\\" as set forth in the 1957 Navajo Reservation Grazing Handbook at page 14. The primary purpose of grazing permits is to control the number of livestock to protect and preserve the land. Mary Ellis Joe testified that she has a grazing permit which allows her to have 83 sheep units. However, according to her testimony, she maintains 150 goats and sheep, 20 cows and 6-7 horses. One cow or one horse is equal to 5 sheep units; therefore, 27 cows and horses would be equivalent to 135 sheep units. May Ellis Joe currently grazes 285 sheep units on a 83 sheep unit permit. Note, under the current poor grazing conditions, she alone needs 17,100 acres to support 285 sheep units on a 83 sheep unit permit. At trial, Mary Ellis Joe alleged that the respondents were responsible for depletion of grass. But, Mary Ellis Joe is also contributing to the poor conditions especially in light of Mr. Randy D. Cornett's testimony that the number of livestock is downplayed by the owners. To exacerbate the situation, there are three other permitters who are allowed 221 sheep units. It is not unreasonable to conclude that these other valid permitters within .0216 are also grazing beyond their limit and thus contributing to the poor grazing conditions in violation of the Navajo land policy.\\n2. Initially, grazing permits were issued to persons who had livestock and could identify customary use to a specified area. Customary use is a Navajo concept that defines one individual Navajo's prescribed boundary for the use and occupancy of land to an area traditionally inhabited by his/her ancestors. In the Matter of the Estate of Charley Nez Wauneka Sr., 5 Nav. R. 79, 81 (1987). Grazing permits were also issued to those people who claimed a specific area of land known as \\\"claimed use area.\\\"\\n3. A grazing permit is one of the most important items of property a Navajo can own. Estate of Navajo Joe, 4 Nav. R. 99 (1983). Grazing permits are extremely valuable property items due to the limited land base and land use rights embodied by the permit.\\n5. Grazing permits, from their inception have been controversial and fraught with conflict.... [T]he court will... adhere to the Navajo land policy adopted by the Navajo Supreme Court. The court recognizes that land is a resource and the increasing pressure on the land threatens its viability. Hence, the primary goal of the Navajo land policy is to keep the land economically viable.\\nThe court is forced [to deal] with the extremely difficult and emotional issue of land disputes. Land to the Navajo people is life which embodies the concept of spiritual, mental, physical and emotional well being. Navajo thinking and values accord land with survival and sustenance. Since the Long Walk, Navajos have maintained a subsistence life-style based on livestock production, which livestock ownership among the Navajo is a symbol of wealth, prestige, and stability.\\nSince the land plays a central and sacred role in the Navajo culture it follows that the Navajo will fight long and hard for their land. Many of the land disputes arising on the Navajo Nation are between common [descendants] and between siblings. The rapid population growth of the Navajos along with a strong cultural tradition of having land with livestock and a home where they grew up inevitably causes land disputes. The Navajo population has increased from approximately 9,000 (upon return from Ft. Sumner) to 169,157 in 1989. See Chapter Images: 1989, General Facts on Navajo Chapters, 1990, Larry Rodgers, Division of Community Development, Window Rock, Arizona.\\nEvidence of the spiritual and mental ties to livestock ownership clearly surfaced when the government forced Navajos to reduce their stock by 64 to 80 percent during the late 1930's and early 1940's. Navajos were devastated by the massive killing and irreverent conduct by government officials. See Navajo Livestock Reduction: A National Disgrace, Navajo Community College Press, 1974. The purported purpose of the stock reduction was to restore the land which had been overgrazed by an over abundance of livestock. This era initiated a reservation-wide grazing policy which gave birth to the Grazing Permit in 1937. The majority ofNavajos reacted strongly against the regulation of grazing and Grazing Permits, but it was eventually accepted. The maximum amount of permissible sheep units an individual Navajo could receive was set at 350 to be authorized by the Bureau of Indian Affairs. Unfortunately, when dealing with the ancestral use of the land, we must look to the family tree which gets ever wider with more and more people, who all claim to have use rights by virtue of common ancestors. This is exactly what we are faced with in this case. Petitioner Mary Ellis Joe is the daughter of Hosteen Kitseally's old wife and Respondent Grace Oldman is the daughter of Hosteen Kitseally's new wife. When Hosteen Kitseally separated from his old wife and began to live exclusively with his new wife, he gave his old wife the majority of the sheep and the land to her right as she faced east on top of Toh Atin Mesa. Hosteen Kitseally, with his new wife, moved to the North of Toh Atin Mesa and began to build the herd again. When boundaries are delineated by fences, it is possible Mary Ellis Joe may have grazed at one time or another on the land north of Toh Atin Mesa and further south and west of the .0216 area. But, when such a claim is made, we have to look to the rights of the other descendants of common ancestors in light of the Navajo land policy.\\nThe semi-desert and arid region of Navajoland requires livestock control to protect the land from becoming a wasteland. Although the amount of stock owned by individual Navajos is much less than what it was prior to forced stock reduction fifty-five years ago, the Navajo population has almost quadrupled since the issuance of grazing permits in 1940. See Navajo Nation FAX88; A Statistical Abstract, p. 2, September 1988, Division of Community Development, Window Rock, Arizona. Within Shiprock Agency District 9, the population was estimated to be 2,285 in 1940 and 4,994 in 1980 - an 118.56% increase. It is projected to increase to 6,242 by 1988. See Navajo Nation FAX, Id. at p. 7.\\nThe 27,000 acres claimed by Mary Ellis Joe disturbs the court for the following reasons. The estimated land size of Sweetwater Chapter is 152,006,30 acres. Her claim amounts to over one fifth of the Sweetwater Chapter area within District 9. The estimated 1989 Sweetwater population is 1,698. See Chapter Images 198, Id. at 104. To grant Mary Ellis Joe her claim of 27,000 acres would not only deny the rights of descendants who have been bom and raised in the area, but it would grant Mary Ellis Joe a special privilege which is no longer practical or realistic. Almost every middle aged Navajo sheep owner can recall when their families made seasonal herds over great distances and could probably show reminisces of camps upon request. The tremendous increase in population has rendered it inequitable for any one Navajo or family to continue that life-style because in effect, it would force 90 percent of the remaining Navajos to forfeit their identity with the land. It's unlikely that a subsistence life-style entirely based on raising stock is possible because of the massive land base that is required to make it profitable without destroying grazing land.\\nAlthough time has changed the extent of subsistence livestock economy of the Navajo people, stockraising today retains its traditional position. Many young educated Navajos trained in various fields have sources of income other than subsistence stockraising. Contrary to what the officials from the Bureaus of Indian Affairs had hoped for forty years ago, many of these Navajos have inherited the Navajo way of thinking. They maintain ties to the land and value stockraising, even if it is just one sheep, one horse or one cow and return back to where they were raised whenever possible. The BIA believed that the spread of education would de-emphasize stockraising. See The Navajo Year Book, Report No. viii, 1951-1961, A Decade of Progress, Robert Young, Assistant to the General Superintendent; Navajo Agency, Window Rock, Arizona 1961.\\nPetitioner contends that those Navajos who reside and graze in the area she is claiming are responsible for the deterioration of grazing land. Petitioner further contends that given the poor range conditions, the 304 sheep units would require 18,240 acres. This figure is based on the testimony given by Randy D. Cornett, Supervisory Range Agency, Bureau of Indian Affairs. Mr. Cornett estimated that the range condition in the lands in dispute is estimated to be poor north of Toh Atin Mesa and poor to fair in the south. Mr. Cornett stated that given poor conditions, it takes 50-60 acres to graze one sheep unit.\\nThe purpose of the Navajo land policy is to keep Navajoland economically viable. The problem of overgrazing is widespread and each individual Navajo should take responsibility to protect our Nation from becoming a wasteland. This can be achieved by controlling the amount of livestock or give them supplemental feeding or both. This court is not in the position to promulgate rules and regulations that may reconcile customary use claims with grazing permits. Nor is this Court responsible for the enforcement of grazing regulations. This Court suggests to the lawmaking body to create a competent administrative agency to hear and determine land disputes. That Navajo Nation administrative agency can promulgate procedures which guarantee due process and rights guaranteed by the Navajo Bill of Rights and Indian Civil Rights Act.\\nJUDGMENT\\nMary Ellis Joe will be not be allowed to claim more land than could have been claimed by her mother Kitseally's old wife. The original 1940 Bureau of Indian Affairs map of the area in dispute shows that Kitseally's old wife had a customary use area designated as .0216 as shown on Petitioner's Exhibit \\\"1.\\\" This will be the land allowed to be claimed by Mary Ellis Joe.\\nThe Navajo Nation policies set out so eloquently in In Re: Mary Ellis Joe remain intact. For this reason, this Court is interested in establishing some boundaries as recommended by the Navajo Nation Supreme Court in the May 5, 1986 Memorandum Decision. In so doing, this Court, in a separate order, shall appoint two (2) fact finders to look into this matter.\\nThis Court is interested in grazing permits held by families within the disputed area. This Court is also interested in the number of sheep units per permit and the customary land use as claimed by the petitioners in light of other permitters in the area, including the Lees and the Marshalls.\\nThe Court is also interested in the following:\\na. How long have the Lees and Marshalls lived in the area prior to the initial petition and how long did Alice Lee's parents live in the area and how did the parents use the land?\\nb. What areas did Mrs. Lee's parents use previously?\\nc. Whether at the time the injunction was issued, what land upon which the Marshalls and Lees lived was occupied and used outside any claim by petitioners?\\nFinally, the Court is also interested in addressing the concerns expressed in In Re: Mary Ellis Joe, that \\\"no person is entitled to more range area than needed to support the number of livestock allowed on his or her grazing permit\\\" and that the rights of other descendants of common ancestors must be reviewed in light of the Navajo land policy.\\nIn summary, the Respondents, Raymond Marshall, Lawrence Marshall and Rose Taliman, are found not to occupy and control any customary grazing use area of the Petitioners. Nor does this Court find Mr. Raymond Marshall, Lawrence Marshall and Rose Taliman to be illegally \\\"holding over.\\\" This Court is not satisfied that any of the Respondents have publicly announced at District Grazing Committee and Red Valley Chapter meetings that they do not intend to comply with any court orders.\\nFurthermore, this Court is not satisfied that Mr. Raymond Marshall deliberately damaged a well and water supply used by Plaintiffs and others. There is no showing to the satisfaction of this Court that Mr. Raymond Marshall damaged the well, much less in a deliberate manner.\\nFinally, this Court is not satisfied that Mr. Raymond Marshall and his family members repeatedly threatened, harassed and intimidated the Petitioners by \\\"gestures and word of mouth.\\\" The Petitioners made some general allegations in their testimony, however, none to the satisfaction of this Court.\\nMrs. Lee appeared for the first time to testify on her own behalf after she was summoned to court in this case. This Court is not satisfied, given Mrs. Lee's testimony, that she occupies, controls, or holds over on land belonging to the Petitioners. Mrs. Lee testified that she was bom and raised upon the land on which she presently lives. This testimony was not challenged by the Petitioners, nor did the Petitioners offer any testimony to the contrary to the satisfaction of this Court. Rather, Mrs. Lee's testimony created a presumption that she's lived on the land claimed by the Petitioners for over 60 years, 40 years prior to the Petitioners' claim. There has been no testimony or evidence to rebut this presumption.\\nThis Court was also not provided evidence or testimony that Mrs. Lee publicly announced at any meetings that she did not intend to comply with court orders, that she damaged any well system or that she threatened, harassed and intimidated the Plaintiffs by gesture or by \\\"word of mouth.\\\"\\nTestimony was submitted to the Court that Mrs. Lee has a grazing permit for another area and that she has nine (9) head of sheep. Mrs. Lee testified that these sheep are corralled. Furthermore, this Court did not receive any testimony that these livestock have been grazing in the disputed grazing area. All testimony submitted indicate that the nine (9) sheep are corralled. Thus, this Court presumes that these sheep are fed by the owners. The Court notes that the corralling of sheep is excluded pursuant to 3 N.N.C. Sec. 937.\\nFinally, testimony was submitted to this Court that various structures were being built in Mrs. Lee's area. However, further testimony indicates that the structures are within the Lees' present residence area and are probably not subject to claim by the Petitioners, so as to preclude such structures.\\nPERMANENT INJUNCTION\\nA permanent injunction restraining Respondents from further threatening, harassing, intimidating and making physical contact with Petitioners is requested by the Petitioners. However, before deciding whether an injunction as requested is needed, this Court finds it necessary to obtain further information regarding permits and customary use areas by both the Petitioners and Respondents and others within the claimed area so as to establish boundaries. The Court also must obtain information regarding grazing by the parties and others, pursuant to 3 N.N.C. Secs. 936 and 942, as well as other provisions that support and further the Navajo Nation grazing policies.\\nIT IS HEREBY ORDERED that two fact finders be appointed to conduct an investigation and to submit to this Court their findings in forty-five (45) days regarding the permitters, the number of sheep units per permit, land uses by the permitters and other interests set out by this Court so as to clarify boundaries. Each of the fact finders is authorized by this Court as officers of the Court to obtain needed information and each is to be paid a reasonable fee for their services, including mileage and per diem.\\nIT IS FURTHER ORDERED, pending the gathering and submission of information, that the Petitioners and Respondents are to be mutually enjoined from making contact with one another, harassing, threatening or intimidating one another.\\nIT IS FINALLY ORDERED that neither of the parties are to discuss the pending case, in order to avoid further conflict, until this Court determines what areas constitute the Petitioners' use areas from which Respondents should be enjoined pursuant to the December 12, 1974 Order and the subsequent order of January 10,1986. This Order does not invalidate the December 12,1974 and January 10, 1986 Orders. However, this Court is mindful that upon the submission of the findings by the appointed fact finders, boundaries shall be considered in accordance with and consistent with the Navajo Bill of Rights, Navajo Grazing laws and policies, as well as social goals and this Court is mindful to do substantial justice between the parties.\\nThe appointment of fact finders shall issue in a separate order within fifteen (15) days and the findings shall be submitted to this Court within forty-five (45) days from the day of appointment, unless ordered otherwise.\\n. The record does not reflect how this conclusion was reached. While there are provisions in the Navajo Nation Code, 3 N.N.C. Sec. 708, for seasonal grazing, it is limited to Districts 1 and 12. It is not clear whether \\\"rotating basis\\\" means the same as seasonal grazing.\"}"

navajo_nation/528791.json

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+"{\"id\": \"528791\", \"name\": \"Jane Burbank, Appellant, v. Tommy Clarke Sr., Appellee\", \"name_abbreviation\": \"Burbank v. Clarke\", \"decision_date\": \"1999-01-26\", \"docket_number\": \"No. SC-CV-36-97\", \"first_page\": 369, \"last_page\": 373, \"citations\": \"7 Navajo Rptr. 369\", \"volume\": \"7\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T21:24:37.695704+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before YAZZIE, Chief Justice, and AUSTIN, Associate Justice.\", \"parties\": \"Jane Burbank, Appellant, v. Tommy Clarke Sr., Appellee.\", \"head_matter\": \"No. SC-CV-36-97\\nSupreme Court of the Navajo Nation\\nJane Burbank, Appellant, v. Tommy Clarke Sr., Appellee.\\nDecided January 26, 1999\\nBefore YAZZIE, Chief Justice, and AUSTIN, Associate Justice.\\nCynthia Thompson, Esq., DNA-People\\u2019s Legal Services, Inc., Chinle, Navajo Nation (Arizona), for the Appellant; and Tommy Clarke Sr., Pro se Appellee, Chinle, Navajo Nation (Arizona).\", \"word_count\": \"2156\", \"char_count\": \"12935\", \"text\": \"OPINION\\nOpinion delivered by\\nAUSTIN, Associate Justice.\\nWe are asked to decide the following issues: 1) whether a minor becomes emancipated in fact upon becoming a parent before reaching the age of majority; 2) whether undivided child support payments for multiple children should be automatically reduced pro rata when one of the children becomes emancipated or attains the age of majority; and 3) whether the trial court abused its discretion when it retroactively modified a child support order resulting in cancellation of part of the past due child support amount. We hold as follows on each issue: 1) Under Navajo Nation law, a minor does not become emancipated solely by the fact that he or she becomes a parent; 2) Lump sum child support payments for multiple children may not be reduced without the obligated parent filing a petition for modification and the court affording the parties an opportunity to litigate the alleged changed circumstances; and 3) A Navajo Nation court may not retroactively modify a child support order. We reverse and remand for further proceedings.\\nI\\nA divorce decree entered on June 17, 1980 ordered Tommy Clarke Sr. (\\\"Appellee\\\") to pay $500 per month to Jane Burbank (\\\"Appellant\\\") for the support of their five minor children \\u2014 four girls and one boy. Clarke v. Clarke, No. CH-CV-142-80 (Chinle Dist. Ct. 1980). The decree was modified on December 29, 1981 after the Appellee failed to make a payment. It reduced his obligation to a monthly lump sum payment of $200 for the support of all the children and ordered him to make a one time payment of $500 to cure the delinquency. The Appellee was further ordered to pay support \\\"for the five (5) minor children of the parties until they become 18 years of age or become emancipated.\\\" Clarke v. Clarke, No. CH-CV-182-81 (Chinle Dist. Ct. 1981). He made only one payment of $200 under this order.\\nThe Appellant filed another action to compel the Appellee to provide support to his children, which produced a written settlement agreement dated August 15, 1983. On August 18,1983, the Window Rock District Court incorporated the settlement agreement into its order, affirmed the Appellee's $200 per month child support obligation that was ordered on December 29, 1981, and added $100 more per month to satisfy $4,100 of unpaid child support. The court further recognized as enforceable all the conditions of the December 29, 1981 order. The Appellee paid nothing pursuant to the 1983 order.\\nOn April 26, 1996, the Appellant filed this case in the Chinle Family Court to collect all of the accumulated, unpaid child support between December of 1981 and the date each female child turned eighteen years of age, and through May of 1996 for the son, whom she claimed would graduate from high school then. She asked for a $34,900 judgment against the Appellee.\\nThe Appellee admitted he did not pay any child support, except for one payment of $200 in 1981. At the final hearing, he asked for a $40 reduction of his obligation, to be applied retroactively, each time one of the children became emancipated. The $40 figure comes from dividing the $200 monthly payment evenly among the five children. The Appellee did not file a petition for modification of his child support payments at any time during the long history of this case.\\nThe Appellee argued that the girls were emancipated on the date they became mothers, at ages fourteen, fifteen, fifteen, and sixteen. He claimed his son was emancipated on the date he dropped out of high school, which was also before he turned eighteen. The record does not disclose whether any child was married, living independently of the parents, or self-supporting at the time of his or her claimed emancipation.\\nThe family court accepted the Appellee's position and retroactively reduced his support obligation \\\"by $40 as each child reached eighteen years of age or was emancipated.\\\" Finding No. 5. The court thereby eliminated from consideration a major portion of the unpaid child support amount that the Appellant sought. Each female was found emancipated upon the birth of her first child and the son upon attaining the age of eighteen. Finding No. 6. The court awarded the Appellant $13,000 for unpaid child support and ordered the Appellee to pay $100 each pay day until the judgment was paid in full. Order Nos. 2-3.\\nII\\nIn 1981, the Chinle District Court ordered the Appellee to pay child support to his five children until they either turned eighteen years of age or became emancipated. In 1997, the Chinle Family Court had to decide the novel issue of whether the sole fact of becoming a parent could emancipate a minor. The court held in the affirmative. We find that the family court's holding on the emancipation issue contradicts Navajo common law.\\nThe law that obligates every parent to support his or her offspring is integral to Navajo culture. This customary law underlies our modem child support jurisprudence. Tom v. Tom, 4 Nav. R. 12, 13 (1983). The rationale for the law is straightforward \\u2014 a parent who brings a child into the world has a duty imposed by natural and spiritual law to provide for the child's needs until the child is capable of self-support. The law also helps to turn the Navajo concept of 'Una (\\\"life \\u2014 past, present and future) into practical experience. Children are viewed as the future, ensuring the existence amd survival of the Navajo people in perpetuity.\\nWhen a young Navajo person no longer needs the support, care, and custody of the parents, he or she is said to be a young adult. At this time, the person becomes self-supporting, independent, and free of parental control. The Navajo term for this is t'aabii ak'inaaldzil and basically means a person is self-supporting. That law applied to the subject of child support determines when a minor becomes emancipated. Navajos became self-supporting earlier in their teens during the first half of this century, because of the Navajo people's minimal reliance on wage income. In contrast, highly developed skills or a post high school education is a must today, if one is to become financially capable of earning a living. For that reason, it takes a minor longer to become independent and self-supporting today. This point may serve as a backdrop for our courts when handling emancipation questions.\\nThe trial court must determine whether emancipation has taken place after examining all the facts and circumstances relevant to that issue. Although what constitutes emancipation is a question of law, the issue of whether a minor has actually become emancipated is a question of fact. Because of our rule that every parent is obligated to support his or her child either to majority or until the child is independent, free of parental control, and self-supporting, we place the burden to prove emancipation on the party asserting it. Nothing short of competent evidence must be used as proof.\\nIn this case, the trial court found that the sole fact of giving birth had emancipated each female minor. The parties did not bring other facts relevant to the emancipation issue to light for the court's consideration. We do not agree that becoming a parent, by itself, is a sufficient ground for emancipation. It is a factor for our trial courts to consider, along with others, but is not alone dispositive of the emancipation issue.\\nThe record before this Court does not disclose whether any of the girls was married, employed, living independently of the parents, or showed an intent to be free of parental control at the time of her purported emancipation. The con trary, however, is apparent from the record. The girls continued to receive the Appellant's full support following the birth of their children. We reverse the trial court's holding that the girls were emancipated, solely by the fact of becoming mothers, and remand for a new evidentiary hearing.\\nThe trial court's order indicates that the son attained the age of eighteen on September 27, 1990. Other than this finding, the court did not make additional findings or legal conclusions establishing the circumstances of the son. We find the trial court's decision on the son impalpable. For example, did the court terminate the son's support as of September 27, 1990? If yes, then for what reasons? Fragmentary evidence seems to indicate the son might have still been attending school after he turned eighteen years of age. Due to the trial court's order lacking findings and legal conclusions, we reverse its decision on the son and remand for a new evidentiary hearing. Help v. Silvers, 4 Nav. R. 46, 47 (1983) (Navajo trial courts must make findings of fact and conclusions of law to support their judgments).\\nIll\\nThe trial court reduced the amount of child support the Appellee had been ordered to pay by $40 each time it found one of the females had become emancipated. The modification was applied retroactively. We now establish the rule that a trial court cannot modify an original child support order in the absence of a petition asking it to do so. See Tom v. Tom, 4 Nav. R. at 14 (\\\"a court order fixing child support can be modified at any time\\\"); see also Brown v. Brown, 3 Nav. R. 239, 240 (Window Rock Dist. Ct. 1982) (a proper petition to modify a decree ordering child support payments must be filed before the court will address the matter). A properly filed petition seeking modification should contain the grounds for the requested relief and the other party should have an opportunity to present evidence in rebuttal. The petition also notifies the payee that the obligated parent intends to seek modification of the child support order. In this case, the Appellee did not file a petition to modify the August 18,1983 order, which set his child support payments at a lump sum of $200 per month for the support of all five children. We find that the trial court erred in modifying the original 1983 order.\\nWhere a court orders a lump sum payment for the support of multiple children, the obligated parent has the burden to modify his or her child support obligation as each child becomes emancipated or reaches the age of majority. Otherwise, the obligated parent must continue to pay the same lump sum support payment originally ordered until the last child is either emancipated or reaches the age of majority.\\nMoreover, a parent who must pay undivided child support for multiple children cannot unilaterally reduce his or her payments each time one of the children becomes emancipated or attains the age of majority, unless permitted by the original child support order. In the case before us, the child support order does not authorize a proportionate reduction in the Appellee's obligation as each child reaches the age of majority or becomes emancipated. Therefore, the Appellee was required to pay $200 per month until the youngest child met the conditions in the August 18, 1983 order or until the court modified the support order. On remand, the trial court will determine the Appellee's liability for unpaid child support since December of 1981. The court will give the Appellee credit for the amount of child support he has paid to date, including those made pursuant to the August 18, 1983 order.\\nFinally, the Appellant argues that the trial court should not have canceled part of the past due child support amount. We agree. Court ordered child support payments become vested in the payee as they become due. Thus, our courts should not permit retroactive modification of a child support order, absent a party's showing of compelling circumstances. A party who wants to reduce his or her child support payments always has access to the courtroom. Upon proper application, the court has the discretion to decide whether its previous child support order should be changed to meet current conditions. Any modification should be prospective only and applicable from the date of the written modification order itself.\\nIV\\nThe trial court's award of $13,000 to the Appellant is reversed. This case is remanded to the Chinle Family Court. The family court will hold further proceedings consistent with this opinion.\\n. This lesson comes to us from a chapter in Navajo history called 'alnaashii jidezdaal (\\\"separation of the sexes\\\"). Due to certain misdeeds of those in authority, the males and females of the tribe separated and took up residence on opposite sides of a wide, swiftly flowing river. After four years of separation, the wise men of the tribe reunited the genders after explaining that without propagation, the tribe would surely become extinct.\"}"

navajo_nation/528795.json

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+"{\"id\": \"528795\", \"name\": \"Jolene Nez, Plaintiff-Appellant, v. Peabody Western Coal Company, Inc, XYZ Corporations 1-10; John and Jane Does 1-10, Defendants-Appellees\", \"name_abbreviation\": \"Nez v. Peabody Western Coal Co.\", \"decision_date\": \"1999-09-22\", \"docket_number\": \"No. SC-CV-28-97\", \"first_page\": 416, \"last_page\": 421, \"citations\": \"7 Navajo Rptr. 416\", \"volume\": \"7\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T21:24:37.695704+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before YAZZIE, Chief Justice, SLOAN* and FERGUSON* Associate Justices (*by special designation).\", \"parties\": \"Jolene Nez, Plaintiff-Appellant, v. Peabody Western Coal Company, Inc, XYZ Corporations 1-10; John and Jane Does 1-10, Defendants-Appellees.\", \"head_matter\": \"No. SC-CV-28-97\\nSupreme Court of the Navajo Nation\\nJolene Nez, Plaintiff-Appellant, v. Peabody Western Coal Company, Inc, XYZ Corporations 1-10; John and Jane Does 1-10, Defendants-Appellees.\\nDecided September 22, 1999\\nBefore YAZZIE, Chief Justice, SLOAN* and FERGUSON* Associate Justices (*by special designation).\\nDaniel M. Rosenfelt, Esq., Albuquerque, New Mexico, for the Appellant; and C. Benson Hufford, Esq., Flagstaff, Arizona, for the Appellees.\", \"word_count\": \"2459\", \"char_count\": \"15529\", \"text\": \"OPINION\\nOpinion delivered by\\nSLOAN, Associate Justice.\\nThis is an appeal from the Kayenta District Court's dismissal of a personal injury action. The district court held that to allow Plaintiff-Appellant, Jolene Nez (\\\"Nez\\\"), to pursue a personal injury complaint against her employer, DefendantAppellee, Peabody Western Coal Company (\\\"Peabody\\\"), after she had received workers' compensation benefits under the Arizona Workers' Compensation Program for the same injuries, would constitute unjust enrichment. We reverse and remand for further proceedings consistent with this opinion.\\nI\\nOn June 12, 1995, Nez, a member of the Navajo Nation, was injured during her employment at Peabody's Black Mesa Mine near Kayenta, Arizona within the Navajo Nation. Nez suffered permanent facial disfigurement after chemical solvents splattered on her face while she cleaned paint brushes for Peabody. Nez filed a claim for benefits with the Arizona Industrial Commission (\\\"Commission\\\") under the Arizona Workers' Compensation Act (\\\"Act\\\"). On April 5, 1996, the Commission awarded Nez benefits for medical costs and lost wages, and $7,530.77 for permanent disfigurement of her face.\\nIn the spring of 1996, Nez requested that her claim be reopened so she could receive additional medical treatment for areas of pigmentation loss on her skin. Her workers' compensation carrier authorized additional medical care and compensation for time lost from her job. The new medical treatment was unsuccessful. On March 13, 1997, the Commission closed Nez's case. The Commission found no change had occurred in her skin condition since the formal award of April 5, 1996, and therefore her total award for the permanent disfigurement of her face remained at $7,530.77.\\nOn April 19, 1997, Nez brought a personal injury claim against Peabody in the Kayenta District Court. She sought damages for emotional distress, pain and suffering, diminution of the quality of her life, permanent facial disfigurement and any other damages not covered by the Commission's award for her June 1995 injury. Peabody moved to dismiss Nez's action for lack of subject matter jurisdiction.\\nOn July 25, 1997, the district court ruled that \\\"this action is not barred for a lack of jurisdiction,\\\" but dismissed Nez's action finding that this \\\"suit would cause unjust enrichment and violate the legitimate expectations of both the employer and the employee under the workers' compensation scheme which the plaintiff elected to use.\\\" Nez v. Peabody Western Coal Co., Order to Dismiss at 3, No. KY-CV-040-97 (decided July 25, 1997). The district court explained its decision in terms of equity:\\nWhile the state law of the election of the remedy is a statutory matter which does not bind this court, the same equitable principle applies as a matter of Navajo Nation law. Where an applicable statutory scheme under state law is a remedy available to a plaintiff, and that plaintiff selects the remedy, it would be inequitable to allow a separate personal injury action under Navajo Nation law.\\nId.\\nNez appealed, arguing that no Navajo legal principle of equity can deny her action for a personal injury after she previously received workers' compensation benefits. Peabody argues that the Navajo Nation must recognize the exclusive remedy provision of the Arizona Act, and that, even if the Navajo Nation is not required to recognize the Arizona exclusive remedy provision, Nez should be equitably estopped from bringing her personal injury action.\\nII\\nOf the issues raised by the parties, we need only address two.\\n1. Whether the Arizona Industrial Commission's award of workers' compensation benefits pursuant to 40 U.S.C. \\u00a7 290 precludes the Navajo Nation courts from assuming subject matter jurisdiction over a personal injury claim arising from the same injuries.\\n2. Whether the Kayenta District Court erred in dismissing the action on equity grounds.\\nWe hold that Arizona's application of its workers' compensation laws does not preclude the Navajo Nation courts from assuming jurisdiction over Nez's personal injury claim. We further hold that the district court abused its discretion in dismissing Nez's action on equity grounds.\\nIII\\nIn 1936, the United States Congress enacted 40 U.S.C. \\u00a7 290. Section 290 was passed to \\\"fill a conspicuous gap in the workmen's compensation field.\\\" See, e.g., Swatzell v. Industrial Comm'n of the State of Arizona, 277 P.2d 244, 248 (Ariz. 1954) (quoting S.R. No. 2294, 74th Congress, 2d Session.). Prior to the passage of Section 290, employees working on federal lands for private employers were not covered by any workers' compensation program. They were not covered by the United States Employees' Compensation Act, because it covered only those directly employed by the federal government. Nor were they covered by any state compensation program, since such acts only protected employees on state lands. Id.\\nSection 290 has been interpreted to allow states to extend their workers' compensation coverage to employees of private employers operating on Indian reservations, but not to employees of tribal governments or enterprises. Tibbets v. Leech Lake Reservation Business Committee, 397 N.W.2d 883 (Minn. 1986) (holding that \\u00a7 290 does not allow state workers' compensation laws to apply against Indian tribes as employers); Swatzell v. Industrial Commission, 277 P.2d 24 (Ariz. 1984) (holding that \\u00a7 290 does not allow state workers' compensation laws to apply to employees of the federal government working on Indian reservations); and Begay v. Kerr-McGee Corp., 682 F.2d 1311 (9th Cir. 1982) (holding that \\u00a7 290 allows state workers' compensation laws to apply to employees of private employers on Indian reservations). We thus acknowledge that 40 U.S.C. \\u00a7 290 allows the Arizona Industrial Commission to award benefits to employees injured while working for private employers within the territory of the Navajo Nation.\\nIV\\nThe question before us, however, is not whether 40 U.S.C. \\u00a7 290 extends state jurisdiction into tribal land, but whether it precludes the Navajo Nation courts from exercising jurisdiction over a personal injury claim which has already passed through a state's workers' compensation program. Allowing a state program to compensate victims of workplace injuries on the reservation is vastly different than divesting the Indian nation courts of jurisdiction over an entire area of the law. Indian nation courts are central to tribal sovereignty, and divestiture of tribal jurisdiction is not to be inferred lightly.\\nIn determining the extent of Indian nation court jurisdiction, we assume that Indian tribes retain all those aspects of sovereignty which have not been withdrawn by federal statute or treaty or by virtue of their dependent status. Iowa Mutual Ins. Co. v. La Plante, 480 U.S. 9, 14 (1987). Thus, there is a presumption that the Navajo Nation courts retain civil jurisdiction over the activities of non-Indians on reservation lands. Id. To determine if \\u00a7 290 \\\"rebuts\\\" the presumption of Navajo Nation jurisdiction, we follow the test of jurisdiction adopted by the United States Supreme Court in National Farmer's Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 855-56 (1985). See Pela v. Peabody Coal Co., 6 Nav. R. 238, 239 (1990) (\\\"We agree with the approach pronounced by the United States Supreme Court [in National Farmer's Union] to determine tribal court jurisdiction.\\\") In National Farmer's Union, the United States Supreme Court noted, \\\"[t]he existence and extent of a tribal court's jurisdiction will require a careful examination of tribal sovereignty, the extent to which the sovereignty has been altered, divested, or diminished, as well as a detailed study of relevant statute, Executive Branch Policy as embodied in treaties and elsewhere, and administrative or judicial decisions.\\\" 471 U.S. at 855-56.\\nWe first consider the text and purposes of 40 U.S.C. \\u00a7 290. Generally a federal law should not be inteipreted as divesting Indian nation courts of jurisdiction absent an express declaration of such an intention by Congress. Littell v. Nakai, 344 F.2d 486, 489 (9th Cir. 1965). We find the text of \\u00a7 290 to be silent as to its intended effect on the jurisdiction of Indian nation courts. Nor does the express purpose of \\u00a7 290 indicate a congressional desire to divest Indian nation courts of jurisdiction; as explained above, the purpose of \\u00a7 290 was to ensure that workers who were previously \\\"slipping-through-the-cracks\\\" between state and federal workers' compensation systems received coverage. Extending the scope of state law does not necessitate a corresponding reduction in the jurisdiction of Indian nation courts. Finally, we find the date of passage of \\u00a7 290 to be partially illustrative of Congress' intentions; Congress passed \\u00a7 290 in 1936, over two decades prior to the establishment of the Navajo Nation Courts in 1959. We find it obvious that Congress could not have intended to divest jurisdiction from a court system that did not yet exist.\\nWe also find the states' treatment of the exclusivity remedy to be illustrative. A workers' compensation award in one state does not preclude a common-law action based on the same facts against the employer in a second state. This is true even if the first state claims that its workers' compensation statute is the exclusive remedy available. See Carroll v. Lanza, 349 U.S. 408 (1955) (holding that full faith and credit clause does not compel one state to enforce the exclusive remedy provision of another state's workers' compensation law). See also Garcia v. American Airlines, Inc., 12 F.3d 308 (1st Cir. 1993) (holding that the forum state had jurisdiction over an employee's common law tort suit even after the employee had received benefits under another state's workers' compensation program). Generally, a state court will enforce another state's exclusive remedy provision, but it will do so for discretionary reasons of comity and not because it is required to do so. Garcia, 12 F.3d at 312.\\nWe thus conclude that 40 U.S.C. \\u00a7 290 does not divest the Navajo Nation courts of jurisdiction over personal injury claims brought on the basis of injuries for which the plaintiff has already recovered under a state workers' compensation statute.\\nV\\nThe fact that the Navajo Nation courts have jurisdiction does not necessarily indicate that that jurisdiction should be exercised. We must consider, as a matter of comity to Arizona, and as a matter of Navajo public policy and Navajo common law, whether the exercise of jurisdiction over personal injury claims based on injuries already heard by the Arizona Industrial Commission undermines the workers' compensation regime. We recognize that workers' compensation systems represent a trade-off on which all parties \\u2014 both workers and employees \\u2014 rely. Workers receive benefits without placing their own contributory fault at issue and employers are protected from protracted litigation and potentially devastating damage awards. We also recognize that economic development is important to the Navajo Nation, and that businesses seeking to operate in the Navajo Nation desire a legal environment that is predictable and fair.\\nWe are thus faced with a delicate balancing test. On one hand, the Navajo Nation courts have jurisdiction over civil disputes on the Navajo Nation and a duty to ensure that parties injured on the Navajo Nation are treated justly and in accordance with Navajo custom and tradition. On the other hand, we recognize that Arizona has a legitimate interest in the integrity of its workers' compensation program, and that private employers have an interest in predictable procedures.\\nIn recognition of this balance, we hold that, while Navajo Nation courts have jurisdiction over claims such as Nez's, such jurisdiction should be exercised with restraint. The Navajo Nation courts should not permit personal injury suits as a \\\"supplement\\\" to state workers' compensation awards unless it is clear that the compensation received under the workers' compensation regime is substantially different from what Navajo common law would consider adequate. We anticipate that the number of instances where a personal injury remedy will be necessary to supplement a state workers' compensation award will be rare; thus, the integrity of the Arizona workers' compensation regime will not be significantly undermined. Whether Nez's award under Arizona's program is substantially different from what would be adequate under Navajo common law is a matter of fact to be determined by the district court.\\nVI\\nWe further hold that before proceeding to the merits of Nez's case, the district court should consider several factual \\\"threshold\\\" issues.\\nA. Waiver\\nUnder Navajo Nation law a party may waive its right to pursue a remedy in court. The district court must consider whether Nez acted in a manner that operated to waive her right to bring this personal injury action in the Navajo Nation courts.\\nWaiver under Navajo common law requires: (1) a distinct waiver of a right; (2) full knowledge of a right which is given up; (3) the fact the person giving the thing up knows his right; (4) a plain appearance that the person intends to give up the rights; and (5) a voluntary and intentional surrender of rights. In re Estate of Tsosie, 4 Nav. R. 198, 200 (W.R. Dist. Ct. 1983).\\nB. Equitable Estoppel\\nThe doctrine of equitable estoppel prevents a party from claiming a right against another person who in good faith has relied on the party's prior conduct and has changed his position for the worse. The doctrine of equitable estoppel is recognized by the Navajo Nation courts. Tafoya v. Navajo Nation Bar Association, 6 Nav. R. 141, 142-43 (1989); In re Practice of Battles, 3 Nav. R. 92, 98 (1982) (Neswood, J. concurring).\\nThe district court must consider whether, as a factual matter, Peabody was disadvantaged by Nez's resort to the Arizona workers' compensation system and delay of two years before filing a personal injury action.\\nC. Remedy under Navajo Common Law\\nIf, after consideration of the threshold issues described above, the district court reaches the merits of Nez's claim, it must determine whether, as a factual matter, the remedy Nez received from the Arizona workers' compensation regime is substantially different than the remedy compelled by Navajo common law. Under Navajo common law, damages in personal injury actions are measured by nalyeeh. See Benally v. Navajo Nation, 5 Nav. R. 206 (1986). Nalyeeh has been interpreted to include a broad range of damages, including claims such as mental anguish and pain and suffering. However, nalyeeh is a flexible concept of distributive justice, and it is possible that Navajo common law prevents plaintiffs from seeking to recover twice for the same injuiy. How nalyeeh should apply in Nez's situation is a matter to be determined by the district court.\\nWe thus reverse the district court and remand this case for disposition consistent with this opinion.\\n. Tom Tso, The Process of Decision Making in Tribal Courts, 31 Ariz. L. R. 225, 230 (1989).\"}"

navajo_nation/528812.json

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+"{\"id\": \"528812\", \"name\": \"Hsaio Li (Mimi) Lee and Yu Te (James) Lin, wife and husband, and Toyo-Cinema Co., Ltd., A Japanese Corporation, Appellants, v. Stanley Tallman and Peabody Coal Company, a Delaware Corporation, Appellees\", \"name_abbreviation\": \"Hsaio Li Lee v. Tallman\", \"decision_date\": \"1996-11-27\", \"docket_number\": \"No. SC-CV-02-95\", \"first_page\": 246, \"last_page\": 252, \"citations\": \"7 Navajo Rptr. 246\", \"volume\": \"7\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T21:24:37.695704+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before YAZZIE, Chief Justice, AUSTIN and *SLOAN, Associate Justices ^sitting by designation).\", \"parties\": \"Hsaio Li (Mimi) Lee and Yu Te (James) Lin, wife and husband, and Toyo-Cinema Co., Ltd., A Japanese Corporation, Appellants, v. Stanley Tallman and Peabody Coal Company, a Delaware Corporation, Appellees.\", \"head_matter\": \"No. SC-CV-02-95\\nSupreme Court of the Navajo Nation\\nHsaio Li (Mimi) Lee and Yu Te (James) Lin, wife and husband, and Toyo-Cinema Co., Ltd., A Japanese Corporation, Appellants, v. Stanley Tallman and Peabody Coal Company, a Delaware Corporation, Appellees.\\nDecided November 27, 1996\\nBefore YAZZIE, Chief Justice, AUSTIN and *SLOAN, Associate Justices ^sitting by designation).\\nLawrence A. Ruzow, Esq., Window Rock, Navajo Nation (Arizona), for the Appellant; and Frederick Aspey, Esq., Flagstaff, Arizona, for Appellee Tallman, and Richard Woods, Esq., Phoenix, Arizona, for Appellee Peabody.\", \"word_count\": \"3296\", \"char_count\": \"19754\", \"text\": \"OPINION\\nOpinion delivered by\\nYAZZIE, Chief Justice.\\nToyo-Cinema Co. (\\\"Appellant\\\") claims that the district court erred in dismissing its case against Stanley Tallman and Peabody Coal Company (\\\"Appellees\\\"). The Appellant raises two issues on appeal: 1) May a district court extend the time for a plaintiff to complete service of process beyond the six months provided for in Nav. R. Civ. P. 6(f); and 2) Assuming that a judge has extended the time for completion of service of process beyond the six months provided for in Nav. R. Civ. P. 6(f), may another judge dismiss an action in which service is completed more than six months after filing of the complaint, but within the extended time for completion of service granted by the first judge.\\nI\\nOn November 11, 1990, a motor vehicle collision occurred between Appellant Toyo-Cinema's employees (Lee and Lin) and a vehicle operated by Appellee Stanley Tallman, then an employee of Appellee Peabody Coal Company. Tallman was driving a company vehicle. The incident occurred near Kayenta, within the territorial jurisdiction of the Navajo Nation. Tallman is an enrolled member of the Navajo Nation. Peabody is a foreign corporation which does busi ness within the territorial jurisdiction of the Navajo Nation.\\nThe Appellant and Lee and Lin filed personal injury suits against the Appellees in both the Navajo Nation and Arizona state court systems. The Navajo Nation complaint was filed on October 15,1992 in the Tuba City District Court. The Arizona state complaint was filed on November 9,1991 (and amended on September 17, 1992) in the Maricopa County Superior Court.\\nDuring September and October of 1992, service of process was made on the Appellees for the Arizona state case. Service was not, however, made for the Navajo Nation case. Instead, the Appellant filed a motion to extend the period of time within which service could be made. A six month extension was granted (first extension) by Judge Evelyne E. Bradley on March 8, 1993. The extension enlarged the time for service to October 15,1993. In August, 1993, the Appellant again filed for an extension and, on August 30, 1993, was granted another six month enlargement of time (second extension) by Judge Wayne Cadman Sr. This extension enlarged the time for service to April 15, 1994.\\nMeanwhile, in the Arizona state case, Appellee Tallman was dismissed by order, on December 23, 1993, due to the state court's lack of subject matter jurisdiction. On June 22, 1994, the state court granted Appellee Peabody summary judgment due to the Appellant's failure to state a claim upon which relief could be granted.\\nIn the Navajo Nation case, the Appellant filed for a third extension of time within which to serve process. A two year extension was granted (third extension) on April 18, 1994 by Judge Cadman. This extension enlarged the time for service to April 15,1996. Service on the Appellees was finally accomplished on April 7, 1994, within the time period allowed by the second extension.\\nOn June 23, 1994, Judge Cadman recused himself from hearing the case and Judge Manuel Watchman stepped in to hear subsequent proceedings.\\nOn July 21, 1994, Appellee Tallman moved to dismiss the suit for the Appellant's failure to serve process within the time period prescribed by Nav. R. Civ. P. 6(f) (\\\"Rule 6(f)\\\"). Appellee Peabody joined in the motion seven days later. On July 28,1994, the individual plaintiffs, Lee and Lin, were dismissed for failing to appear for their depositions; this left Toyo-Cinema as the sole plaintiff.\\nIn response to the Appellees' motion to dismiss, Judge Watchman entered an Order, on December 28, 1994, granting the dismissal. In the Order, Judge Watchman wrote that \\\"[njotwithstanding the previous ruling of the Court, it appears clear that the action should have been dismissed pursuant to Rule 6(f) on April 16, 1993.\\\"\\nII\\nRule 6(f) states that \\\"[a]n action shall be dismissed without prejudice if the summons is not issued and service completed within six months from the date of the filing of the complaint.\\\" Judge Watchman's dismissal order states that \\\"[t]he language of the Rule is mandatory.\\\" (Order at para. 4). We disagree.\\nRule 6(b), Nav. R. Civ. R, states that an extension of the six-month time limit may be given by the court. Rule 6(b) reads in pertinent part:\\nExtension of Time. When by these Rules or by notice given thereunder or by order of court, an act is required to be done at or within a specified time, the court for good cause may (1) with or without motion or notice, order the period enlarged if request is made before the expiration of the period originally prescribed or as extended by a previous order...; but it may not extend the time for any actions under Rules 50(b), 52(b), 59(e), and 60(c), except under the conditions stated in them, (emphasis added).\\nReading Rules 6(b) and 6(f) in conjunction with one another, we find that our courts may enlarge the time to serve process. Such a reading preserves flexibility in the rules. Flexibility in the time requirement for service may be necessary and appropriate in cases where the defendant cannot be found or where the defendant is evading service. Also, extensions may be necessary in cases that involve numerous defendants or in class actions where difficulties in certifying the class occasionally arise.\\nOur decisions allow for continuances in certain circumstances where flexibility is necessary. Compare Battles v. General Electric Credit Corp., 4 Nav. R. 26, 29 (1983) (holding that the district court should have granted a continuance of a trial where defendant's counsel failed to appear) and Navajo Nation v. Rico, 4 Nav. R. 175, 176 (W.R. Dist. Ct. 1983) (stating that the grant of continuances of trials is within the sound discretion of the trial court and holding that good cause for a continuance did exist where the prosecution's sole material witness was legitimately unavailable to testify) with In re Estate of Plummer, 6 Nav. R. 271, 274 (1990) (holding that good cause for a continuance did not exist where counsel had only one day to prepare for the hearing, although his client had over a month's notice of the hearing). If continuances are allowed for entire trials in certain circumstances, then continuances for lesser components of the litigation process, such as service of process, are also to be allowed. For these reasons, we hold that Rule 6(f) is not mandatory and an extension of the time to serve process may be granted.\\nIll\\nThe trial court has discretion to grant or deny an extension of time to serve process. That discretion must be exercised in a sound and legal manner and not in an arbitrary or capricious manner. Battles, 4 Nav. R. at 27. The boundaries within which the trial court must exercise its discretion are determined by the facts of the case and established by rules and law. See In re Contempt of Sells, 5 Nav. R. 37, 38 (1985). In light of the strong language of Rule 6(f), the district court must find substantial justification to extend the time period; otherwise, Rule 6(f) would have little effect or force.\\nSpecifically, the requesting party must show two things in order to receive an extension of time for service of process: due diligence and good cause. First, the party must prove that he or she has exercised due diligence in attempting to serve process. Once due diligence is proven, the second level of inquiry arises: whether the requesting party has proven good cause for an extension pursuant to Rule 6(b).\\nA. Due Diligence\\nMore than inadvertence, mistake of counsel, or ignorance of rules is required to receive an extension of time for service of process. Rather, the requesting party must show that he or she exercised due diligence in attempting to serve process. The purpose of the due diligence requirement is to ensure that the plaintiff acts in good faith in seeking a continuance. Further, it is to prevent the plaintiff from sitting on claims and retaining sole control of them, with resulting prejudice to the defendant.\\nThe determination of the requisite diligence rests with the sound discretion of the district court and should be made on a case-by-case basis. Bradley v. Benally, 6 Nav. R. 156, 158 (1989). It should be noted, however, that \\\"[t]he diligence requirement imposes an affirmative obligation on the moving party to keep abreast... of the case.\\\" Id. Where a requesting party has the opportunity or ability to serve process, for instance, the rule requires that he or she do so. See Plummer, 6 Nav. R. at 274 (stating that a litigant should not be able to claim the need for a trial continuance where he or she had ample time to prepare or where the party had the ability to act).\\nOur neighboring jurisdiction of Arizona also imposes a legal duty on the plaintiff to use due diligence in serving process upon the defendant. See, e.g., Grobe v. McBryde, 468 P.2d 936, 938, 939 (1970) (citing Murphy v. Valenzuela, 386 P.2d 78, 80 (Ariz. 1963)); Air Power v. Superior Court, 690 P.2d 793, 795 (Ariz. Ct. App. 1984); Riley v. Superior Court, 567 P.2d 1218, 1220 (Ariz. Ct. App. 1977). In Riley, for instance, the court found that the plaintiff failed to demonstrate due diligence because it made no attempt to ascertain the defendant's home address even though several means to do so were available to the plaintiff. 567 P.2d at 1220. The court stated that a plaintiff cannot \\\"sit back and say 'it would not have worked' as an excuse . and then be heard to say he exercised diligence.\\\" Id. Instead, the plaintiff must meet the affirmative obligation of attempting to serve process.\\nIn the present case, the Appellant did not meet the affirmative obligation of attempting to serve process. The Appellant made no attempt to serve the Appellees for the Navajo Nation court case during the time permitted by Rule 6(f). The Appellant's lack of due diligence is highlighted by the fact that it had the opportunity and ability to serve process. Instead, the Appellant purposefully delayed service of process for the Navajo Nation court case until the simultaneous state court case was completed. If the due diligence rule were applied to this case, we would hold that the Appellant did not make the requisite showing of due diligence for an extension of time to serve process. The due diligence rule will apply hereafter.\\nB. Good Cause\\nGood cause is not a standardized formula, but is instead a case-specific, fact-based inquiry that is to be conducted within the sound discretion of the trial court. See Battles, 4 Nav. R. at 27-29 (holding that the district court should have granted a continuance of a trial where defendant's counsel failed to appear); Rico, 4 Nav. R. at 176 (stating that the grant of continuances of trials is within the sound discretion of the trial court and holding that good cause for a continuance did exist where the prosecution's sole material witness was legitimately unavailable to testify). In determining whether good cause exists, our courts should consider policies favoring the speedy disposition of cases and the importance of serving timely notice so as to prevent prejudice to the defendant. See In re Certified Questions II, 6 Nav. R. 129, 131 (1989) (stating that unauthorized deviations in the Rules may prejudice parties and impede judicial efficiency); In re Estate of Goldtooth Begay #2, 7 Nav. R. 29, 31 (1992) (emphasizing the importance of notice in Navajo common law by stating \\\"that Navajo due process ensures notice\\\"); Peterson v. Ford Motor Credit Co., 2 Nav. R. 36, 41 (C. P. Dist. Ct. 1979) ([t]he primary purpose of having rules for service is to ensure the parties are notified and have an opportunity to defend).\\nFailure to serve notice in a timely manner allows the plaintiff to retain sole control of the case and causes great prejudice to the defendant. The Court has addressed the importance of preventing prejudice in the context of granting trial continuances. In Plummer, for instance, the Court stated that a party requesting a continuance must show that prejudice or harm will result if no continuance is granted. 6 Nav. R. at 275. In Battles, we stated that a showing of prejudice is an element common to all of the factors that a court may consider in deciding to grant a continuance. 4 Nav. R. at 28, 29 (holding that requiring the defendant to represent himself on short notice would sufficiently prejudice him). Finally, in Rico, the Court stated that \\\"a showing of prejudice . is most important.\\\" 4 Nav. R. at 176. In light of the importance of preventing prejudice to the defendant, we find that good cause for an extension of time to serve process includes, but is not limited to, a showing by the plaintiff that defendant will not be prejudiced by such an extension.\\nIn this case, the Appellant argues that a pending, simultaneous state court action was sufficient justification for an extension. We disagree. Simultaneous court actions pending in the Navajo Nation and another jurisdictiondo not constitute good cause for an extension of time to serve process. To find otherwise would be to invite forum shopping between state and Navajo Nation courts.\\nForum shopping is particularly damaging in cases such as this one, where a non-Indian litigant attempts to bring, in a state court, an action that is clearly within Navajo jurisdiction. Such action negatively impacts the Navajo govem ment's ability to make its own laws and be governed by them. Williams v. Lee, 358 U.S. 217, 220 (1959). In light of Appellee Tallman's membership in the Navajo Nation, Appellee Peabody's extensive contacts with the Navajo Nation, the location of the accident within Navajo Nation territorial jurisdiction, and the presence of a company vehicle in the accident, Navajo adjudicatory jurisdiction in this case is clear. 7 N.N.C. \\u00a7 253.B. (1995) (giving Navajo Nation courts civil jurisdiction over \\\"[a]ll civil actions in which the defendant is a resident of Navajo Indian Country, or has caused an action to occur within the territorial jurisdiction of the Navajo Nation); Taylor v. Bradley, 6 Nav. R. 147, 149 (1989) (holding that Navajo Nation courts have civil jurisdiction over all persons who cause an action to occur in Navajo Indian Country); see also Williams v. Lee, 358 U.S. 217, 223 (1959) (holding that the state may not exercise jurisdiction if doing so would interfere with Indians' right \\\"to make their own laws and be ruled by them\\\"); Montana v. United States, 450 U.S. 544, 565 (1981) (a tribe may regulate the activities of non-members who enter consensual relationships with the tribe or its members); Enriquez v. Super. Ct. In and For County of Pima, 565 P.2d 522, 523 (Ariz. Ct. App. 1977) (stating that the state court's assumption of jurisdiction over a case involving a non-Indian suing an Indian for an accident occurring on a reservation would be an infringement on tribal self government). As such, this case should have proceeded in Navajo Nation courts. By pursuing the state court case, the Appellant made a misplaced attempt at forum shopping.\\nIn cases where litigants feel compelled to pursue their claims in state court and Navajo Nation court, they have valid options on how to proceed. They may serve process for both cases and then ask one of the courts for a trial continuance. Alternatively, they may ask the court for an extension of time to serve process or for a trial continuance. Failing to serve process for the Navajo Nation court case, in the absence of good cause, however, is an error.\\nIV\\nThe final issue deals with \\\"horizontal appeals\\\" or the power of one trial judge to \\\"overrule\\\" another trial judge and such is discussed here for guidance. In this case, Judge Watchman's dismissal order effectively overruled the previous time enlargements granted by Judges Bradley and Cadman. Horizontal appeals are strongly discouraged. Navajo common law disfavors second-guessing a decision maker. The decision of a naat'aanii, when made in good faith, is to be respected and followed. Similarly, the word of a medicine man, in propounding the way of things, is to be respected and followed. Our decisions support this principle. In Rico, the trial judge who granted a motion after it had been denied by another trial judge wrote that he was \\\"extremely reluctant to enter an order different than that entered by the [previous judge]. Normally, judges should respect the prior rulings of a judge....\\\" 4 Nav. R. at 177. Accordingly, we establish a presumption in favor of the rulings of the first judge.\\nThe issue is closely related to the \\\"law of the case\\\" doctrine. According to that doctrine, \\\"a determination of law once made will be treated as correct throughout all subsequent stages of the proceeding except when the issue is raised in a higher court.\\\" Barron's Law Dictionary 269. Accordingly, one trial judge cannot overrule another trial judge of equal authority. This rule helps to preserve precious judicial resources and it discourages \\\"judge shopping,\\\" wherein litigants endlessly search for a judge until they find one that will provide them with a favorable ruling.\\nSound judicial policy also limits our trial judges from overruling one another. Before a judge overrules another, that judge must malee findings sufficient to overcome the presumption favoring the first judge. As such, overrulings will only be allowed in cases where there is a substantial change of circumstances, where a clear error in the first decision makes the decision manifestly erroneous, or where manifest injustice will result if the first ruling is not overturned. Substantial change of circumstances may include the availability of new evidence or previously unavailable evidence that will more likely than not change the outcome of the decision. Also, a litigant may be entitled to a new ruling where a change of law occurs, such as where this Court construes a statute anew. These circumstances seek to prevent unduly harsh and manifestly unjust decisions.\\nWhen one judge overrules another and the issue is presented to this Court, we will examine the merits of the original judge's ruling to determine whether the second judge abused his or her discretion in overruling the original judge.\\nV\\nDespite our conclusion that there was not good cause to enlarge the time within which to serve process, the Appellants actually obtained an extension of time from two prior presiding judges and, in reliance on those orders, faithfully completed service of process. In other words, the Appellants relied upon the validity of the prior orders and, finally, proceeded to serve process. This Court will honor the expectations created by those orders.\\nAccordingly, and without prejudice to our analysis, the decision of the Tuba City District Court dismissing the complaint is REVERSED. The case is remanded to the Tuba City District Court for further proceedings.\\n. Appellant also incorrectly assumed that the service of process for the state court case provided sufficient notice to the Appellees for the Navajo Nation court case. However, serving notice for a separate, pending suit does not permit the plaintiff to fail to serve notice for the suit in question.\"}"

navajo_nation/528823.json

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+"{\"id\": \"528823\", \"name\": \"Ralph Bennett Jr., Appellant, v. Navajo Board of Election Supervisors, Appellee; and Roy Begay, Appellant, v. Navajo Board of Election Supervisors, Appellee\", \"name_abbreviation\": \"Bennett v. Navajo Board of Election Supervisors\", \"decision_date\": \"1995-09-22\", \"docket_number\": \"Nos. SC-CV-32-94, SC-CV-36-94\", \"first_page\": 161, \"last_page\": 165, \"citations\": \"7 Navajo Rptr. 161\", \"volume\": \"7\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T21:24:37.695704+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before YAZZIE, Chief Justice, AUSTIN and SLOAN* (*by designation), Associate Justices.\", \"parties\": \"Ralph Bennett Jr., Appellant, v. Navajo Board of Election Supervisors, Appellee, and Roy Begay, Appellant, v. Navajo Board of Election Supervisors, Appellee.\", \"head_matter\": \"Nos. SC-CV-32-94, SC-CV-36-94\\nSupreme Court of the Navajo Nation\\nRalph Bennett Jr., Appellant, v. Navajo Board of Election Supervisors, Appellee, and Roy Begay, Appellant, v. Navajo Board of Election Supervisors, Appellee.\\nDecided September 22, 1995\\nBefore YAZZIE, Chief Justice, AUSTIN and SLOAN* (*by designation), Associate Justices.\\nLawrence A. Ruzow, Esq., for Appellant Ralph Bennett Jr., Window Rock, Navajo Nation (Arizona); and Roy Begay, Appellant Pro Se, Window Rock, Navajo Nation (Arizona); and Claudeen Bates Arthur, Esq., Chief Legislative Counsel, and Ron Haven, Esq., for Appellee Navajo Board of Election Supervisors, Window Rock, Navajo Nation (Arizona).\", \"word_count\": \"1987\", \"char_count\": \"12004\", \"text\": \"OPINION\\nOpinion delivered by\\nYAZZIE, Chief Justice.\\nI\\nThese appeals involve two separate election cases in which the Navajo Board of Election Supervisors (Board) disqualified Ralph Bennett Jr. (Bennett) and Roy Begay (Begay), both candidates for delegate to the Navajo Nation Council. The Board found that they violated the 1990 Navajo Election Code (Election Code) and the 1984 Navajo Ethics in Government Law (Ethics Law) and disqualified them from running in the November 1994 Navajo Nation General Election. We consolidated the cases on appeal.\\nA\\nOn August 20, 1992, the Ethics and Rules Committee (ERC) of the Navajo Nation Council found Bennett in violation of Section 3754(A) (2) of the Ethics Law because he filed his Economic Disclosure Statement late. The ERC fined Bennett $50.00, payable to the Navajo Nation. On May 9,1994, Bennett filed his declaration of candidacy for Navajo Nation Council delegate for the Red Lake/Sawmill Chapters. The declaration form asks whether the candidate had ever been convicted of any offense listed in Section 8.B.4 of the Election Code within the past five years. Bennett checked \\\"no.\\\"\\nOn June 10, 1994, the Board cleared Bennett to run and he received the most votes in the August 9, 1994 Navajo Nation Primary Election.\\nOn August 29, 1994, the Board decided not to certify Bennett for the general election after being notified by the ERC that he had failed to timely file his 1992 Economic Disclosure Statement. The Board removed Bennett, without notice and hearing, from the general election ballot for violating the Ethics Law and in turn Section 8.B.4 of the Election Code. Bennett appeals the Board's decision to this Court.\\nB\\nBegay was sworn in as a council delegate for the Klagetoh/Wide Ruins Chapter on January 15, 1991. On January 29, 1993, the ERC ruled that Begay had violated Section 3753(1) (1) and (3) of the Ethics Law for receiving unauthorized compensation for official acts.\\nThe ERC recommended that the Navajo Nation Council publicly reprimand Begay pursuant to 2 N.T.C. \\u00a7 3757(A) (1) (e), and order him to pay $291.28 in restitution to the Navajo Nation. ERC Resolution No. ERC-93-268. The recommendation was debated by the Navajo Nation Council, but it declined to impose any sanctions against Begay.\\nBegay filed his nominating petition on May 10,1994, seeking another term as council delegate for the Klagetoh/Wide Ruins Chapters. On June 17, 1994, the Board certified Begay's candidacy for Navajo Nation Council delegate.\\nOn August 20, 1994, the Ethics and Rules Office notified the Board that Begay had failed to disclose to the ERC his violation of Section 3753 of the Ethics Law and Section 8.B.4 of the Election Code. On August 31, 1994, the Board removed Begay, without notice and hearing, from the general election ballot for violating those laws.\\nII\\nThe Board has discretion to apply election laws, but such discretion is limited and this Court can decide whether the Board acted within its discretion. Pioche v. Navajo Board of Election Supervisors, 6 Nav. R. 360, 364 (1991), citing Johnson v. June, 4 Nav. R. 79, 82 (1989). These limitations are imposed by due process and the statutory language of the Election Code and Ethics Law.\\nA\\nBoth Bennett and Begay claim that the Board removed them from the general election ballot without affording them notice and an opportunity to be heard; thus, raising due process claims.\\nBegay claims that the Board's ex parte decision not to certify him was based solely on the ERC's finding that he violated the Ethics Law. Aside from the Board not giving him notice and an opportunity for hearing, he claims that the ERC has no power to disqualify him from seeking elected office in the first place, because its only job is to recommend sanctions to the Navajo Nation Council.\\nBennett asserts a similar claim that Navajo law requires the Board to notify a candidate of its intent to disqualify him from the general election ballot and then, on request of the candidate, hold a hearing on the issue. He claims that the Board removed him from the ballot without providing the required notice and opportunity for hearing.\\nThe Board contends that it can disqualify any candidate, as a matter of law, that the ERC finds in violation of the Ethics Law without providing notice and hearing. Both Bennett and Begay were found in violation of the Ethics Law by the ERC and the Board claims that is the only justification it needs to disqualify them.\\nNavajo due process requires notice and provides all parties to a dispute an opportunity to be heard. In re removal of Katenay, 6 Nav. R. 81 (1989); Mustache v. Navajo Board of Election Supervisors, 5 Nav. R. 115, 119 (1987). It requires adherence to the principles of justice and fair play, Yazzie v. Jumbo, 5 Nav. R. 75, 76 (1986), and the courts-must interpret it in a way that it protects civil liberties while preserving Navajo culture and self-government. Billie v. Abbott, 6 Nav. R. 66, 74 (1988). The Navajo people have an established custom of notifying all parties involved in a controversy and allowing them, and other interested parties, an opportunity to present and defend their positions. Begay v. Navajo Nation, 6 Nav. R. 20, 24 (1988). This Navajo common law is followed today by the Navajo people in resolving disputes.\\nThe Board is held to these same standards of due process, because, as we said in Bennett v. Navajo Board of Election Supervisors, 6 Nav. R. 319, 325 (1990), the right to run for public office is a part of political liberty which makes it a due process right. The Board is thus obligated to provide Bennett and Begay with notice of its intent to remove them from the general election ballot and provide them with an opportunity for hearing on the proposed removal.\\nThe purpose of a hearing before the Board is not to retry issues previously decided by a trial court or an administrative agency such as the ERC, Pioche v. Navajo Board of Election Supervisors, 6 Nav. R. 360 (1991), but to explain to the candidate the precise reason for the proposed action to be taken and to have the candidate respond. This is the nature of traditional Navajo due process and it is carried out with respect. It prevents government agencies, such as the Board, from making important decisions respecting a person's interest in secrecy. It also promotes respect for the decision itself and the decision-making process.\\nThe record shows that the Board did not provide these minimal due process protections to Bennett and Begay. The Board's decision as to both of these candidates must therefore be reversed.\\nB\\nThe final issue is whether the last sentence of Section 8.B.4 is valid and if it can be used to prevent a person who has been found in violation of the Ethics Law from seeking the office of Navajo Nation Council delegate.\\nSection 8.B.4 in its entirety reads as follows:\\nMust not have been convicted of any misdemeanor involving crimes of deceit, untruthfulness and dishonesty, including but not limited to extortion, embezzlement, bribery, perjury, forgery, fraud, misrepresentation, false pretense, theft, conversion, or misuse of Tribal funds and property, and crimes involving the welfare of children, child abuse, child neglect, aggravated assault and aggravated battery within the last five (5) years. Mast not have been found in violation by a trial court or the Ethics and Rules Committee of the Navajo Nation Council of the Navajo Ethics in government or Election Laws[.] (Italics added).\\nBennett claims that the language quoted in italics above (language at issue) is not part of the 1990 Election Code as adopted by the Navajo Nation Council and therefore cannot bar him from the general election ballot. Begay claims that the Board exceeded its authority when it removed him from the ballot using the language at issue, because only the Navajo Nation Council, pursuant to 2 N.T.C. \\u00a7 3756(A) (15) (a), has power to remove and bar a sitting council delegate from seeking reelection for five years. The Board's only argument on the validity of the language at issue is that they \\\"were approved\\\" by the Navajo Nation Council.\\nOur review of the official minutes of the Navajo Nation Council session when the Election Code was adopted shows that the language at issue was not included as part of proposed Section 8.B.4.\\nThe minutes indicate that during the debate, Council Delegate Benjamin Curley requested the delegates who \\\"had the motion\\\" to include \\\"disqualifica tions [of candidates for president, vice-president and council delegate] based on the candidate's filing of various information and pursuant to administrative sanctions of the Ethics in Government Law, because there are provisions which would apply in the Ethics in Government Law that could also be used for disqualification purposes.\\\" Minutes of Navajo Nation Council Session dated April 6, 1990 at 33.\\nCouncil Delegate Daniel Tso (the delegate with the motion) responded that he \\\"will accept [the] request to include references to the Ethics in Government Law as part of the qualifications in the President and other elected officials.\\\" Id. at 42.\\nCouncil Delegate Elmer Milford, who seconded the motion, stated, \\\"I'd like to speak to the issue of Section 8, there was a request made pertaining to 7 on page 18, I'd like to ask the moving party that he also include 'violations of the Ethics and Election Law' on that section right there. With that I will second the motion.\\\" Id. at 43. The proposed Election Code shows that the only section 7 on page 18 is a section dealing with the qualifications for president and vice-president, not council delegate.\\nWe find these comments by various delegates unclear as to what was actually proposed. It is clear that no delegate proposed to enact the actual language at issue, but it was nonetheless published by the Board as part of Section 8.B.4. Since the language at issue was neither in the Election Code as proposed to the Navajo Nation Council nor added during the debate on the Code, as a matter of Navajo law, it simply has no validity. The Board cannot use that language to disqualify candidates from elective office.\\nThe decisions removing Bennett and Begay from the general election ballot are therefore reversed.\\n. Ralph Bennett was among twenty four employees of the Navajo Nation Division of Community Development who were found by the ERC to be in noneompliance with the Ethics Law for filing a late Economic Disclosure Statement for 1992. Ethics and Rules Committee Resolution No. ERC-93-346 (August 20, 1992).\\n. Section 8.B.4 of the Election Code fixes the qualifications for delegates to the Navajo Nation Council and lists as an offense an Ethics Law violation.\\n. Section 3753 (I)(l) and (3) state that:\\n(1) No public official or employee shall accept or receive any benefit, income, favor or other form of compensation for performing the official duties of their office or employment, beyond the amount or value which is authorized and received in their official capacity for performing such duties.\\n(3) No public official or employee, however, shall accept any benefit, income, favor or other form of compensation for the performance of the duties of any other office or employment not actually performed or for which such official or employee is not otherwise properly authorized or entitled to receive.\"}"

navajo_nation/528841.json

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+"{\"id\": \"528841\", \"name\": \"Navajo Nation, Plaintiff-Appellee, v. Cynthia Hunter, Defendant-Appellant\", \"name_abbreviation\": \"Navajo Nation v. Hunter\", \"decision_date\": \"1995-10-03\", \"docket_number\": \"No. SC-CR-07-95\", \"first_page\": 166, \"last_page\": 167, \"citations\": \"7 Navajo Rptr. 166\", \"volume\": \"7\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T21:24:37.695704+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before YAZZIE, Chief Justice, AUSTIN and CADMAN, Associate Justices.\", \"parties\": \"Navajo Nation, Plaintiff-Appellee, v. Cynthia Hunter, Defendant-Appellant.\", \"head_matter\": \"No. SC-CR-07-95\\nSupreme Court of the Navajo Nation\\nNavajo Nation, Plaintiff-Appellee, v. Cynthia Hunter, Defendant-Appellant.\\nDecided October 3, 1995\\nBefore YAZZIE, Chief Justice, AUSTIN and CADMAN, Associate Justices.\\nLee R. Belone, Esq., Window Rock, Navajo Nation (Arizona), for the Appellant; and Daryl Junes, Shiproclc, Navajo Nation (New Mexico), for the Appellee.\", \"word_count\": \"721\", \"char_count\": \"4116\", \"text\": \"OPINION\\nOpinion delivered by\\nAUSTIN, Associate Justice.\\nThis opinion decides the Navajo Nation's motion to dismiss a criminal appeal for failure to timely file the notice of appeal.\\nI\\nAppellant, Cynthia Hunter, was convicted of four criminal offenses on March 15, 1995. A sentencing hearing was held and the trial judge signed the judgment on June 27, 1995. Hunter filed her notice of appeal and brief on July 31, 1995; which was thirty-four days after the date of judgment. The Supreme Court was closed from July 25-28,1995 due to the Navajo Nation Judicial Branch's Annual Conference. Hunter's thirtieth day for purposes of filing a notice of appeal fell on July 27, 1995, the day the Court was closed.\\nOn August 24, 1995, the Navajo Nation filed a motion to dismiss the appeal arguing that the failure to file the notice of appeal and brief within thirty days from the date of judgment, as required by Rule 2(c), Navajo Rules of Appellate Procedure (NRAP), constituted a lack of jurisdiction. Hunter responded to the motion to dismiss, arguing that NRAP 5(a) permitted an extension of time to July 31, 1995, the date the Court reopened for business.\\nII\\nUnder the NRAP and the Navajo Nation Code, the notice of appeal and brief must be filed with the Supreme Court within thirty calendar days of the date the judge signs the final judgment. 7 N.T.C. \\u00a7 801(a) (1985); NRAP 2(c). The rules also provide that \\\"[t]he last day of the period so computed is to be included unless it is a Saturday, Sunday, or court holiday, in which case the period shall extend to the end of the next business day which is not a Saturday, Sunday, or court holiday.\\\" NRAP 5(a). Moreover, 7 N.T.C. \\u00a7 801(a) is a jurisdictional statute and this Court is without jurisdiction unless an appeal is filed within the prescribed time period. Navajo Nation v. Devore, 5 Nav. R. 155 (1987) (citations omitted).\\nThis Court has granted motions to dismiss for lack of jurisdiction due to an untimely filing of an appeal. See, e.g., Devore, 5 Nav. R. at 155 (notice of appeal filed 31 days after entry of judgment); The Navajo Tribe of Indians v. Yellowhorse, 5 Nav. R. 133 (1987) (notice of appeal filed 42 days after entry of judgment); Riverview Service Station v. Eddie, 5 Nav. R. 135 (1987) (no enlargement of time for filing by mail); Viva Rancho Motors, Inc. v. Tully, 5 Nav. R. 145 (1987) (the day the judge signs the judgment is the date used to compute appeal time); Whitehorse v. Navajo Nation, 4 Nav. R. 55 (1983) (notice of appeal filed 31 days after entry of judgment); Window Rock Mall, Ltd. v. Day IV, 3 Nav. R. 58 (1981) (no jurisdiction unless timely filing of an appeal).\\nThe question before this Court is whether the filing of the notice of appeal, thirty-four days after the judgment was signed, is untimely because the Supreme Court was not in operation on the thirtieth day. The deadline for filing the notice of appeal in this case was on July 27, 1995, but on that date the Supreme Court office was closed by order of the Chief Justice and the entire Supreme Court staff was attending the Judicial Branch's Annual Conference in Farmington, New Mexico. The Court did not reopen for business until July 31, 1995.\\nWe hold that the closing of the Supreme Court office by order of the Chief Justice, such as for the Judicial Branch Annual Conference, is akin to a court holiday. The delayed filing in this case was not Hunter's fault, but was because the Court staff was not available to attend to the routine, daily business of the Court, as is the case on a court holiday. Accordingly, it was proper for Hunter to file her notice of appeal the next business day the Court was open, which was Monday, July 31, 1995.\\nThe motion to dismiss the appeal is denied.\"}"

navajo_nation/528845.json

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+"{\"id\": \"528845\", \"name\": \"Singleton's Mobile Home Sales, Inc., a New Mexico Corporation, Petitioner, v. Bernice Begay Benally, Respondent\", \"name_abbreviation\": \"Singleton's Mobile Home Sales, Inc. v. Benally\", \"decision_date\": \"1997-01-24\", \"docket_number\": \"No. SR-CV-12-95\", \"first_page\": 512, \"last_page\": 518, \"citations\": \"7 Navajo Rptr. 512\", \"volume\": \"7\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation District Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T21:24:37.695704+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Singleton\\u2019s Mobile Home Sales, Inc., a New Mexico Corporation, Petitioner, v. Bernice Begay Benally, Respondent.\", \"head_matter\": \"No. SR-CV-12-95\\nDistrict Court of the Navajo Nation Judicial District of Shiprock, New Mexico\\nSingleton\\u2019s Mobile Home Sales, Inc., a New Mexico Corporation, Petitioner, v. Bernice Begay Benally, Respondent.\\nDecided January 24, 1997\", \"word_count\": \"2967\", \"char_count\": \"17846\", \"text\": \"JUDGMENT AND ORDER\\nJudge Lorene Ferguson presiding.\\nTHIS MATTER was heard on November 14, 1995 at which time this Court made the following FINDINGS:\\n1. Bernice Begay Benally and Jerome Begay entered into a contract with Singleton's Mobile Home for a 1973 used mobile home in February, 1982.\\n2. The terms of the contract required Ms. Benally and Mr. Begay to make monthly payments in the amount of $295.62 up to January, 1990 for a total of $30,380.00, which included interest at 23% annually.\\n3. Ms. Benally and Mr. Begay separated in 1991 and Ms. Benally was left to pay off the contract.\\n4. Since the contract was entered, Ms. Benally learned that she had a disabiling disease, scleroderma, which impaired her ability to work and she has been receiving Social Security disability and Supplemental Security Income checks in the amount of $441.00 a month.\\n5. Ms. Benally was not able to make cash payments each time and found it necessary to deliver personal property to make required payments.\\n6. The Petitioner asserted that the principal balance due was $8,766.14 and the arrears amount was calculated at $10,426.14 which included other costs.\\n7. The Petitioner asserts that since 1990, additional late charges and additional interest have brought the amount owing to $21,732.87.\\n8. Petitioner did not file its petition to repossess until January 25, 1995, five years after the contract was due, allowing the late charges and interest to buildup as it did.\\n9. Respondent did not receive any receipts for the delivery of her personal property although she testified she received receipts for her cash payments.\\n10.Respondent testified that she directed that the amounts credited for the personal property be applied to her mobile home payments.\\n11. While during the course of the contract period, Ms. Benally, Respondent, also took out a loan, she testified that the account was kept separate and the cash payments and property delivered did not apply to that loan which was completely paid back. This was not challenged by the Petitioner.\\n12.Ms. Benally testified that in 1990 she gave personal property which totaled $1,710.00, while petitioner showed credit in the amount of $1,345.00 to which Mr. Singleton was willing to apply a credit of $365.00.\\n13.Also, there was a discrepancy in the total late charges due. While the Petitioner's witness testified Ms. Benally owed $1,840.00 in late charges, she also testified that the figure was based upon a $15.00 per month late charge during the month she was late. However, the contract terms would limit the late charge to $14.78 per month. In addition, the late charges continued to accumulate after the contract year ended. Again, the Petitioner was willing to apply $22.06.\\n14. The contract terms read at 12 of the contract:\\n12. Delinquency and collection charge: Buyer hereby agrees to pay a delinquency and collection charge on each payment in default for a period of more than ten (10) days in the amount of 5% of each payment, or $15.00 which is less.\\n15.Ms. Benally also testified that she gave property for which she did not receive credit in the amount of $3,005.00. The property delivered was:\\nOne camcorder $2,200.00\\nThree shawls (pendelton) $300.00 Three concho belts $150.00\\nThree turquoise beads $150.00\\nThree chokers $65.00\\nOne bead $50.00\\n16.Ms. Benally also testified she paid a total of $1,007.55 since the end of the contract period.\\nDISCUSSION\\nThis being a repossession case, this Court is obligated to review records, testimony, and evidence submitted to this Court to determine whether Singleton Mobile Home should repossess the 1973 Presidential mobile home and whether the Respondent, Bernice Begay Benally, should be required to pay the amount requested by the Plaintiff.\\nWhile there is no dispute regarding Ms. Benally's failure to make payments on the contract, there is a dispute as to the amount owed. In particular, the Respondent asserted that the record keeping practices of the Petitioner have been inadequate and as grounds stated that on several occasions she was not credited for cash payment and delivery of personal property. The Respondent also testified that while she was given receipts for her cash payments, she was not given receipts for her personal property.\\nRespondent also testified she was not properly assessed for late charges and that the lesser amount of $14.78 should have been used in assessing her late charges, rather than the $15.00 amount she was assessed on several occasions.\\nWhile the records are difficult to decipher, due to Plaintiff's lack of accuracy and neatness of the records, this Court is able to ascertain by testimony and supporting documents what was owed on the contract as of the ending date of the contract. The Petitioner has also submitted documents on additional charges since January 25, 1990, which include late charges, interest and taxes.\\nUse of the Rules of Repossession is new to this Court. While these Rules were adopted by the Navajo Nation judges in 1982, all of the judicial districts have not implemented them. A few began to utilize the Rules when Reservation Business Services v. Albert, 7 Nav. R. 123 (1995), was issued by the Navajo Nation Supreme Court.\\nThe history of consumer law on the Navajo Nation is brief. In 1968, the Navajo Tribal Council, in Resolution No. CF-26-68, declared the public policy that self-help repossession of secured personal property was illegal. This was codified as 7 N.T.C. Sections 607-609 (Supp. 1985) and requires creditors to either obtain consent from the debtor to repossess or to obtain an Order of Repossession by the Navajo Tribal Court.\\nFearful of Federal Court challenges, the Navajo Nation judges adopted repossession rules to set out the procedure for repossession actions. In Reservation Business, the Supreme Court stated:\\nThe Navajo Nation judges wanted a middle ground between self-help repossession and the delays of normal civil proceedings. They wanted to assure that consumers would be protected from repossession on technical grounds, while offering a prompt and efficient remedy to creditors. The choice reflected in our repossesion rules is that there be a summary proceeding for creditors which allows due process protection for debtors. It modified the common law replevin action in a procedure which permits a petition, an Order to Show Cause to the debtor, and a summary hearing to decide the property of repossession. The rales offer protection for purchasers of personal property on credit while assuring a healthy business climate.\\nId. at 126.\\nUpon the issuance of Reservation Business in 1995, this Court has attempted to implement the Rules of Repossession approved by the judges in 1982.\\nIt appears that the intent of the judges, when they approved the Rules, was to find a balance between protecting the purchasers and providing a prompt and efficient remedy to creditors. However, the Rules as applied here did neither when strictly applied.\\nIn this case, there has been no dispute that the Respondent is behind in her payments. As of the day the contract ended, the Respondent was behind in her payments by $8,766.62.\\nSince then, Plaintiff has added late charges and interest alleging the amount owed was more.\\nThe circumstances involved in this case, however, is that Respondent has been behind in her payment more often than not. Each time, the Plaintiff allowed her to remain in arrears as demonstrated by the late charges, for which Respondent has paid or was assessed either $14.74 or $15.00. In addition, she was allowed to make payments by delivering personal property. Since the contract was entered, Respondent has delivered personal property for which the Petitioner has accepted as payment.\\nIt has been about five years since the end of the contract period and Petitioner did not file its petition until 1995. The Petitioner has been assessing the Respondent late charges and taxes since 1990 and as result the Petitioner requests of this Court to enter a judgment for repossession and for the total amount requested in the amount of $19,613.38 up to January 25, 1995.\\nThe Rules of Repossession would require repossession, where the right to repossess is clear unless the provision of the rule placing limitation on repossession will not be satisfied. Rule (4).\\nWhere the right to repossess personal property is regulated by a contract, the Court is required to apply the terms of the contract unless they are unconscionable or contrary to law. Rule (4).\\nThe Court is required only to consider whether or not the property is a security under an agreement and whether or not there has been a breach of the agreement so as to justify repossession. Furthermore, no counterclaim, setoff or other independent claims in ruling upon the question of repossession is to be considered by the Court. Rule (8)(b).\\nWhen read in light of Rule (9), the Court can set a hearing when the Respondent makes a claim against the Petitioner in the nature of a counterclaim, setoff or otherwise. This Court in applying the Rules has discretion to make a preliminary inquiry as to whether or not there is probable cause to believe the Respondent may have a valid claim for relief and should there appear to the Court that a valid claim exists, the Court has several options as set out in Rule (9)(b)(l), all of which take the property away from the Respondent pending proper Court action with the exception of Rule (9)(b)(3), which allows the Respondent to keep the property upon the posting of a bond equal to the value of the property or the balance due on it. The Court then can make its determination as to whether there is a claim.\\nWhen these sections are applied, here, there doesn't appear to be any protection of the purchaser, nor do these sections provide a prompt or efficient remedy for the creditor, particularly should the Respondent assert a claim. The difficulty in this case is that the records kept by both the seller and the buyer are less than adequate. Finally, the seller attempts to strictly apply the contract terms five (5) years after the payments have stopped. In reality, the contract had been breached time and time again, while the interest and late charges were adding up to a hefty figure.\\nIn A-1 Mobile Homes, Inc., v. Raymond and Alice Becenti, 2 Nav. R. 72 (C.R Dist. Ct. 1979), the Court was presented with an argument that where a creditor accepted late and erratic payments, there was a waiver of \\\"time is of essence\\\" requirement. The Defendant in A-1 Mobile Homes, Inc., by citing Soltis v. Liles, 551 P.2d 1297, 1300 (Ore. 1976), argued that where there was acceptance of late payments or erratic payments, there was a waiver to strictly apply the contract. In so doing, however, the Court did look to Soltis for the proposition that accepting late payments repeatedly may result in a waiver to declare a default in strict compliance with the contract. In Soltis, the contract contained a clause providing that any failure to make timely payment would be deemed a default. The Soltis court took the position that a vendor or creditor, who has repeatedly accepted late payments in the past cannot strictly apply the terms of the contract and cannot declare a default without first giving the debtor reasonable notice of his intention to insist upon strict compliance with the terms of the contract in the future. The terms of the Soltis contract provided that where there is failure to make payments within the grace period, the escrow agent is authorized to surrender to seller, upon demand and without notice to buyer, all of the documents specified in the preceding paragraph, thereby terminating the escrow. Id. at 1301. The Court also stated that the vendor or creditor must allow the debtor a reasonable opportunity to cure any past delinquencies. Id. at 1300. While, in Oregon, there is a state law to this effect, the Court did apply Soltis, by finding that there was sufficient notice to take action and that the history of payments indicated an intention on the part of the defendant to make monthly payments before the date that they became due.\\nIn A-1 Mobile Homes, Inc., the Court focused on whether new notice should be given upon each default. The Court stated:\\nThis behavior on the part of Defendant was not a separate default, but the continuation of his previous one which had not been cured because of the outstanding late charges. Therefore, further notice from GECC of its intention to take legal action was not necessary following the March, 1971, warning. A-1 Mobile Homes. 2 Nav. R. at 74.\\nThere the Court accepted the argument that sufficient notice be given, and decided sufficient notice was given.\\nIn its decision, the Court, while not addressing the specific issue of whether there was a waiver or estoppel so as to preclude strict enforcement of the contract, did respond to the waiver of default argument and in so doing, denied Defendant's request by finding that sufficient notice was given.\\nHere, the terms of the contract require that ninety-six (96) payments be made for the period covering February 25, 1982 to January 25, 1990. The payment amount of $295.62 was to have been made from February 25,1982 to December, 1989 and $296.10 was to have been made in January 25,1990, as a last payment.\\nItem 23 of the contract between the Respondent and the Petitioner requires that should the buyer default in any payments, the seller shall have the right to declare all amounts due immediately, and the buyer would be required to deliver the property to seller at a place designated by the seller and he would have the\\nright to repossess without demand. This did not happen until five (5) years later. Also in Item 24, the contract states that \\\"time is of the essence of this contract.\\\"\\nIn Hale Contracting v. United New Mexico Bank, 799 P.2d 581 (N.M. 1990), it states where \\\"previous conduct of parties is in direct conflict with unequivocal express terms of an agreement, the latter is determinative as to the nature of their agreement.\\\" Id. at 587. Also in Hale, the Supreme Court of New Mexico addressed whether the bank was estopped from applying strictly the terms of the contract, which states that when payment is not made and the bank deems itself unsecured, the indebtedness \\\"shall become and be due and payable forthwith without demand.\\\"\\nThe New Mexico Supreme Court stated, \\\"When a party accepts a late payment on a contract without comment, he waives the default that existed. With repetition his actions may suggest an intention to accept late payments generally.\\\" Id. at 588.\\nIn Hale, the Court addressed the issues of waiver, modification and waiver by estoppel. Here, we are concerned with waiver by estoppel. Waiver by estoppel is applied where the party shows that she was misled to her prejudice by the conduct of the other party into the honest and reasonable belief that waiver was intended by the vendor. Waiver by estoppel is further explained as follows:\\nWaiver of estoppel based upon either an actual waiver of certain \\\"expenses or conduct\\\" where the reliance of the opposite party and his change of position justifies the inhibiton to assert the obligation or condition.\\\" Id. at 586.\\nIn.Hale, the case Cowan v. Chalamidas, 98 N.M. 14, 644 P. 2d 528 (1982), was quoted as follows: \\\"When a contract payee accepts late payments without objection as to their timeliness, he impliedly leads the payor to believe that late payments are acceptable.\\\" Furthermore:\\n[A]s a practical matter, one party to a contract will use his past commercial dealing with another party as a basis for the interpretation of the other party's conduct. Hale, 799 P.2d. at 588.\\nHere, the buyer was led to believe she did not have to make timely payments, and she was further led to believe that when she did, she could only malee partial payments, some in personal property. The Respondent was misled to her prejudice into an honest and reasonable belief that Singleton would not assert strictly the contract terms and that Singleton was unconcerned about the past due payments and that she would be allowed to continue making inconsistent and irregular payments.\\nCONCLUSION\\nBased upon the above discussion, the doctrine of waiver by estoppel would prevent Singleton from fully enforcing the contract terms. First, Singleton waived its right to strictly enforce the contract terms regarding timely payments. That in itself is evident.\\nSecondly, Singelton is estopped by claiming any interest after the contract period expired and any late fees after the contract period expired.\\nThis Court has issued a separate Order of Repossession. Any sale of the mobile home shall be in strict compliance with the Navajo Uniform Commercial Code. Any deficiency judgment shall be allowed only upon a showing of strict compliance with the Uniform Commercial Code.\\nThe Court's findings are that the amount owed as of the end of the contract date was $8,766.62. After the contract date, Respondent paid $1,007.55. Also deducted was a $65.00 payment agreed to by the Petitioner, a $22.06 late charge for over-charge fee agreed to by the Petitioner, a $365.00 credit not previously credited and $3,005.00 for property given not previously credited. Thus, the amount owed by the Respondent without interest or late charge since January 25, 1990 is $5,309.39, which is the amount entered as judgment for the Petitioner.\\nFinally, this Court on November 29, 1995 imposed sanctions against the Petitioner in the amount of $400.00 to compensate Respondent's counsel. The Petitioner is hereby Ordered to pay $400.00 to Respondent's counsel within fifteen (15) days.\"}"

navajo_nation/528859.json

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+"{\"id\": \"528859\", \"name\": \"In the Matter of the Petition of Jimmie Austin Sr. for a Writ of Habeas Corpus\", \"name_abbreviation\": \"In re Austin\", \"decision_date\": \"1998-07-01\", \"docket_number\": \"No. SC-CV-24-98\", \"first_page\": 346, \"last_page\": 348, \"citations\": \"7 Navajo Rptr. 346\", \"volume\": \"7\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T21:24:37.695704+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before YAZZIE, Chief Justice, SLOAN and R. BEGAYE, Associate Justices by designation.\", \"parties\": \"In the Matter of the Petition of Jimmie Austin Sr. for a Writ of Habeas Corpus.\", \"head_matter\": \"No. SC-CV-24-98\\nSupreme Court of the Navajo Nation\\nIn the Matter of the Petition of Jimmie Austin Sr. for a Writ of Habeas Corpus.\\nDecided July 1, 1998\\nBefore YAZZIE, Chief Justice, SLOAN and R. BEGAYE, Associate Justices by designation.\\nTom Laughter, Esq., Shonto, Navajo Nation (Arizona), for the Petitioner.\", \"word_count\": \"1053\", \"char_count\": \"6212\", \"text\": \"OPINION\\nOpinion delivered by\\nYAZZIE, Chief Justice.\\nThis Petition for Writ of Habeas Corpus requires us to interpret the provisions of 9 N.N.C. \\u00a7 1663 (1995 ed.). Essentially, we are asked to decide whether the Kayenta Family Court erred when it sent the Petitioner, Jimmie Austin Sr. (\\\"Petitioner\\\"), to jail for a term of 180 days without first finding that he violated a term of its Temporary Protection Order. We hold that the family court erred and invalidate that part of the Domestic Abuse Protection Order incarcerating the Petitioner.\\nI\\nA Petition for a Domestic Abuse Protection Order and motion for immediate Temporary Protection Order were filed against the Petitioner on February 23, 1998. The petition alleged that the Petitioner committed sexual abuse on an elderly lady. On that same day, the family court granted the motion for issuance of a Temporary Protection Order and ordered the Petitioner to appear for a show cause hearing on March 3, 1998. The documents were served on the Petitioner on February 28, 1998.\\nThe Petitioner and the victim appeared at a hearing on the domestic abuse petition on March 3, 1998. The Petitioner admitted all the allegations of the petition at the hearing. The court then entered a Domestic Abuse Protection Order, which ordered as follows: 1) Petitioner shall stay away from the victim's residence and place where the victim conducts daily business; 2) Petitioner is prohibited from abusing, harassing or threatening the victim; 3) Petitioner is prohibited from contacting the victim by any means; 4) Petitioner is prohibited from touching any of the victim's property; and 5) Petitioner shall serve 180 days in jail. The Petitioner was immediately arrested and incarcerated.\\nThe Petitioner filed a Petition for Writ of Habeas Corpus and a motion to stay execution of the jail sentence with this Court. On March 26, 1998, we granted the stay and ordered the Petitioner's release from confinement after finding a reasonable probability that the family court might have erred in ordering a jail sentence. We left the rest of the family court's orders in the Domestic Abuse Protection Order intact. We now decide the merits of the habeas corpus petition.\\nII\\nThe Petitioner argues that the family court had no basis to give him a jail sentence using either 9 N.N.C. \\u00a7 1663(A) or (B), because no complaint was ever filed with the court alleging that he violated any term of the Temporary Protection Order. The family court's final protection order does not state which law it relied on to incarcerate the Petitioner. Neither does the protection order state the reason for sentencing the Petitioner to a jail term. Without these crucial findings, we are left to guess at what law the court used.\\nA\\nAccording to subsection 1663(A) (1), a person can be charged with the crime of \\\"interfering with judicial proceedings,\\\" if \\\"after receiving notice of a protection order,\\\" the person \\\"disobeys the order.\\\" A Navajo Nation prosecutor must bring the criminal charge against the violator in the district court under this subsection. 9 N.N.C. \\u00a7 1663(A)(1) and (2).\\nThe Petitioner is right. There is no evidence in the family court record which would justify jailing the Petitioner for the crime of interfering with judicial proceedings. The family court record is also devoid of evidence that either the court or a police officer referred any alleged violation of the temporary protection order to the prosecutor's office for criminal prosecution. 9 N.N.C. \\u00a7 1663(A)(1)-(3). Since a prosecution for the criminal charge of interfering with judicial proceedings was not commenced by a Navajo Nation prosecutor against the Petitioner, the family court could not use subsection 1663(A) to impose a jail term on the Petitioner.\\nB\\nA person can be held in criminal contempt, after the court finds beyond a reasonable doubt that the person violated a term of a Protection order. 9 N.N.C. \\u00a7 1663(B)(3). The person may be punished with a jail term of up to 180 days, or a fine of $250.00, or both. Id. The family court very likely used this subsection to put the Petitioner in jail.\\nIf that is the case, the family court erred because, like subsection 1663(A), certain conditions have to exist before the court can impose a jail sentence. There is the initial condition that someone must have reason to believe that a person vio lated a protection order to start the process. The law requires that a written motion for the issuance of an order to show cause naming the violator be filed; a court hearing to ascertain whether the protection order was violated must be held within fifteen days of the issuance of the order to show cause; and the court must find, using the beyond a reasonable doubt standard, that the person violated the protection order. One of the sanctions is a sentence of up to 180 days in jail. 9 N.N.C. \\u00a7 1663(B)(l)-(3). Again, the record does not disclose that anyone filed a complaint alleging that the Petitioner violated a term of the protection order. Since the initial condition was not met, there is no basis to order the Petitioner to jail.\\nThe law requires a finding that a person violated a term of a protection order before jail becomes an option. The courts are prohibited from imposing a jail sentence on a person simply on the basis of the person's admission to an allegation in a domestic abuse protection petition. In this case, the family court imposed a jail sentence on the Petitioner without first finding that the Petitioner violated a term of the protection order and that is error.\\nIll\\nThe Kayenta Family Court's order sentencing the Petitioner, Jimmie Austin Sr., to 180 days incarceration is reversed. We invalidate that part of the Domestic Abuse Protection Order imposing the jail term. The other terms of the protection order are not at issue in this habeas corpus petition and therefore are not affected by this decision.\"}"

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+"{\"id\": \"530235\", \"name\": \"The Navajo Nation; The Navajo Tribal Council; Leonard Haskie, Interim Chairman of the Navajo Tribal Council; and Irving Billy, Interim Vice Chairman of the Navajo Tribal Council, Plaintiffs, v. Chairman Peter MacDonald, Sr.; Vice Chairman Johnny R. Thompson, et al., Defendants\", \"name_abbreviation\": \"Navajo Nation v. MacDonald\", \"decision_date\": \"1989-05-17\", \"docket_number\": \"No. WR-CV-99-89\", \"first_page\": 463, \"last_page\": 493, \"citations\": \"6 Navajo Rptr. 463\", \"volume\": \"6\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation District Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T21:44:15.784960+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judge Robert Yazzie, Presiding.\", \"parties\": \"The Navajo Nation; The Navajo Tribal Council; Leonard Haskie, Interim Chairman of the Navajo Tribal Council; and Irving Billy, Interim Vice Chairman of the Navajo Tribal Council, Plaintiffs, v. Chairman Peter MacDonald, Sr.; Vice Chairman Johnny R. Thompson, et al., Defendants.\", \"head_matter\": \"No. WR-CV-99-89\\nDistrict Court of the Navajo Nation Judicial District of Window Rock, Arizona\\nThe Navajo Nation; The Navajo Tribal Council; Leonard Haskie, Interim Chairman of the Navajo Tribal Council; and Irving Billy, Interim Vice Chairman of the Navajo Tribal Council, Plaintiffs, v. Chairman Peter MacDonald, Sr.; Vice Chairman Johnny R. Thompson, et al., Defendants.\\nDecided May 17, 1989\\nStanley Pollack, Assistant Attorney General, Violet A. P. Lui, David P. Frank, Attorneys, Navajo Nation Department of Justice, counsels for Plaintiffs.\\nThomas J. Hynes, Hynes, Hale, and Fortner Law Firm, Daniel Deschinny, Sr., counsels for Defendants, and Carol Kirk Retasket, appearing Pro se.\\nJudge Robert Yazzie, Presiding.\", \"word_count\": \"13180\", \"char_count\": \"82404\", \"text\": \"AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW, OPINION AND ORDER\\nINTRODUCTION\\nThis matter having come for hearing on May 2-4, 1989, on Plaintiffs' Complaint for Injunctive and Declaratory Relief, this Court having heard only the Plaintiffs' evidence (Defendants presented no evidence at trial) and the parties' legal arguments on the issue of whether the Navajo Tribal Council's act of placing Chairman Peter MacDonald and Vice Chairman Johnny R. Thompson on Administrative leave with pay is valid, the Court makes the following Findings, Opinion and Order:\\nFINDINGS OF FACT\\n1. At trial, Plaintiffs introduced transcripts of hearings held before the United States Senate Select Committee on Indian Affairs on February 2, 6, and 7,1989. Serious allegations made under oath included:\\n(a) Defendant MacDonald (i) solicited and received bribes and kickbacks from contractors doing business with the Navajo Nation; (ii) realized personal profits from the purchase of the Big Boquillas Ranch by the Navajo Nation; and (iii) conspired with others to cover-up such unlawful actions and encouraged others to commit perjury in investigations concerning payoffs from the Big Boquillas transactions; and\\n(b)The MacDonald-Thompson campaign solicited and received monetary contributions and services of value from non-Navajo and Navajo contractors.\\n2. The campaign expense report for the MacDonald-Thompson campaign, combined with the Senate Select Committee testimony, reveals that Defendants MacDonald and Thompson:\\n(a)failed to report the contributions alleged to have been made by the contractors; (b) failed to report the non-Navajo sources of these contributions; and (c) would have exceeded the $84,192 campaign expense limitation for the 1986 general election for Chairman and Vice Chairman of the Navajo Tribal Council had they reported all expenses, including over $39,000 worth of air transportation services provided by James Paddock.\\n3. The minutes of the 1989 Winter Session of the Navajo Tribal Council and the resolutions adopted by the Council:\\n(a) The Navajo Tribal council convened the Winter Session on February 14, 1989. The Winter Session agenda was adopted by a vote of 53-29-4. The agenda included a resolution adopting procedures for presentation of resolutions and a resolution placing the Chairman and Vice Chairman on administrative leave with pay;\\n(b) At the February 16,1989 session, Chairman MacDonald voluntarily placed himself on administrative leave and left the Council Chambers;\\n(c) On February 17, 1989, the Council adopted:\\n(i) Resolution CF-3-89 estabhshing the Office of Special Prosecutor to conduct investigations into the allegations raised before the Senate Select Committee;\\n(ii) Resolution CF-4-89 placing the Chairman on Administrative leave with pay, by vote of 49-13-5, finding that \\\"a state of emergency exists in the management of the Navajo Tribal Council caused by the unique circumstances and events relating to the office of the Chairman and the serious allegations raised personally against Peter MacDonald, Sr.\\\";\\n(d) On March 1, 1989, the Tribal Council adopted Resolution CMA-6-89 authorizing the Department of Justice to Institute Legal Proceedings Regarding the Big Boquillas Ranch Transaction. The Tribal Council made the following factual finding: \\\"The actions of the Chairman and Vice Chairman of the Navajo Tribal Council purporting to terminate the Attorney General and Deputy Attorney General constitute deliberate use of the Chairman's and Vice Chairman's office powers to interfere with and/or subvert Council action regarding the status of the Chairman and Vice Chairman, as well as legal action concerning possible ethical violations of public officials in connection with Big Boquillas and other matters arising out of the Senate Investigation Hearings.\\\"; and\\n(e) On March 10, 1989, the Navajo Tribal Council adopted Resolution CMA-10-89 placing the Vice Chairman on administrative leave with pay, by a vote of 37-2-6. A quorum of 46 Council delegates were present. Defendants offered no evidence that a quorum did not exist. Pursuant to CMA-10-89, the Council made several determinations including:\\n(i) \\\"Vice Chairman Johnny R. Thompson is unwilling and has failed to carry out the duties and the obligations of the Office of the Chairman and failed to promote and preserve the interest of the Navajo Nation.\\\"\\n(ii) \\\"Johnny R. Thompson . has indicated that he will be subject to the influence of Peter MacDonald, Sr., in the exercise of authority of the office defeating the purpose of Resolution CF-4-89.\\\"\\n(iii) \\\"Vice Chairman Johnny R. Thompson himself is implicated by allegations that the MacDonald/Thompson candidacy filed fraudulent campaign contribution and expense reports with the Navajo Election Committee and accepted campaign contributions from non-Navajos, which are grounds for disqualification from office.\\\"\\n4. Defendant Thompson has admitted that at all time relevant to this action, he has acted under the direction and authority of Defendant MacDonald. Subsequent to the Chairman being placed on administrative leave and being divested of all executive and legislative authority on February 17, 1989, Vice Chairman Thompson continued to act under the direction and authority of Chairman MacDonald by:\\n(a) attempting to take the following actions in consort with Defendant MacDonald:\\n(i)firing the Attorney General, (ii) appointing an Executive Secretary, (iii) restraining the Deputy Attorney General from giving legal advice to the Tribal Council, (iv) issuing orders to the Chief of Police, (v) firing the Director of Legislative Affairs, (vi) appointing an Attorney General, and (vii) appointing a Deputy Attorney General; and\\n(b) under his own authority, but subject to the direction of Defendant MacDonald, Defendant Thompson:\\n(i) attempted to fire the Deputy Attorney General on February 17,1989 on the instructions of Chairman MacDonald, after the Deputy Attorney General gave legal advice contrary to the Chairman's wishes, and after the Attorney General had recommended the appointment of a Special Prosecutor to investigate wrongdoing arising from the Big Boquillas purchase;\\n(ii) signed documents after February 17, 1989 under executive authority as delegated by Chairman MacDonald; and\\n(iii) failed to deliver the preliminary Hawkins Report investigating the Big Boquillas transaction to the Navajo Tribal Council after it was presented to a special session of the Advisory Committee and Budget and Finance Committee which Defendant Thompson chaired.\\n5. The foregoing facts demonstrate serious allegations of a breach of trust by Defendants MacDonald and Thompson which threatened, directly and indirectly, the property and resources of the Navajo Nation, and the political integrity, economic security and health, safety and welfare of the Nation.\\n6. The foregoing facts further demonstrate that Resolutions CF-4-89 and CMA-10-89 placing Chairman MacDonald and Vice Chairman Thompson on administrative leave do not constitute removal but rather an administrative leave.\\n7. Defendants did not present any evidence that the administrative leave resolutions CF-4-89 and CMA-10-89 are invalid or that these resolutions constitute bills of attainder.\\n8. At the conclusion of the trial, Defendants MacDonald and Thompson stipulated with the plaintiffs, on record, that they still do not recognize Resolutions CF-4-89 and CMA-10-89 as valid, and as such, they have always exercised full authority of their official capacity despite being placed on administrative leave with pay.\\nOPINION\\nThe Court will address these issues pursuant to the guidelines set out by the Navajo Supreme Court:\\n1.WHETHER THE NAVAJO TRIBAL COUNCIL HAD REASONABLE GROUNDS TO BELIEVE THAT CHAIRMAN PETER MACDONALD, SR. OR VICE CHAIRMAN JOHNNY R. THOMPSON SERIOUSLY BREACHED THEIR FIDUCIARY TRUST TO THE NAVAJO PEOPLE AND THE ADMINISTRATIVE LEAVE WOULD BE IN THE BEST INTEREST OF THE NAVAJO PEOPLE.\\n2. WHETHER THE TERMS OF NAVAJO TRIBAL COUNCIL RESOLUTIONS CF-4-89 AND CMA-10-89 CONSTITUTE ADMINISTRATIVE LEAVE OR REMOVAL.\\n3. WHETHER THE NAVAJO TRIBAL COUNCIL RESOLUTIONS PLACING CHAIRMAN PETER MACDONALD, SR. AND VICE CHAIRMAN JOHNNY R. THOMPSON ON ADMINISTRATIVE LEAVE AFFORD THE BASIC PROTECTIONS REQUIRED BY THE NAVAJO SUPREME COURT.\\n4. WHETHER THE NAVAJO TRIBAL COUNCIL RESOLUTION CF-4-89 OR CMA-10-89 PLACING CHAIRMAN PETER MACDONALD, SR. AND VICE CHAIRMAN JOHNNY R. THOMPSON ON ADMINISTRATIVE LEAVE CONSTITUTE BILL OF ATTAINDER.\\nLegislative acts are presumed valid. This presumption of validity attaches from the moment legislation is passed and remains until rebutted. Benally v. Gorman, 5 Nav. R. 273, 275 (W.R.D.C., 1987); Damon v. MacDonald, 4 Nav. R. 138, 140 (W.R.D.C., 1983); Kelly v. Johnson, 425 U.S. 238, 247 (1976). If a legislative act is subjected to judicial review and the court subsequently makes a decision that the act is valid, it does not become valid from the date of that decision but, because of the presumption of validity, the act is valid from the point of passage. In the event a legislative act is declared invalid as a result of judicial review, it is not necessarily a nullity or retroactively invalid. For example, an officer appointed to a public post under a statute subsequently held to be invalid is treated in law as a defacto officer. His acts during the period before the statute was held invalid are binding upon the community. State v. Carroll, 38 Conn. 449 (1871), cited with approval in Norton v. Shelly Country, 118 U.S. 425 (1886).\\nWhen a court is faced with reviewing any legislative action, that review must be conducted under certain principles. The main principle of judicial review is the presumption that the legislative act is proper and legal. The word 'pre sumption' is a legal term which means that a thing is accepted as true or proven unless the presumption is rebutted by evidence to the contrary. One of the factors in determining whether an act is proper or legal is whether the legislative action is rationally related to legitimate governmental purpose. Benally, supra, at 275.\\nThe Navajo Rules of Evidence recognizes the general rule on presumptions: Rule 6, Presumptions, states:\\nIn all cases not otherwise provided for by statute or by these rules, a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence.\\nThe plaintiffs sued Chairman Peter MacDonald, Vice Chairman Johnny R. Thompson, and other defendants in their individual capacities, seeking declaratory relief and a permanent injunction. A temporary restraining order was sought and granted.\\nThe declaratory and injunctive relief sought by Plaintiffs was:\\n1) This court preliminarily and permanently enjoin defendants from attempting to exercise any official powers and duties as officials, employees, or agents of the Navajo Nation; and\\n2) This Court enter a declaratory judgment that any act or action taken by defendants MacDonald and Thompson, after being placed on leave, and by other defendants upon their termination of employment by the Interim Chairman, are null and void.\\nThe defendants requested a Writ of Prohibition from the Navajo Nation Supreme Court on the basis that the action was barred by the Navajo Nation Sovereign Immunity Act, 1 N.T.C. \\u00a7 354 (g) (1) and (3).\\nThe plaintiffs asserted that the Chairman and Vice Chairman had been relieved of their executive and legislative powers and put on administrative leave with pay. They therefore had no official capacity and could not invoke the protection of the Sovereign Immunity Act.\\nThe Supreme Court determined that whether the Sovermign Immunity Act was a bar required findings of fact as to the official capacity of the defendants and denied the request for the writ. MacDonald v. Yazzie, 6 Nav. R. 95 (1989).\\nThe next proceeding involved a hearing on the temporary restraining order. At that hearing the District Court certified four questions to the Navajo Nation Supreme Court. The fourth question was: Does the Navajo Tribal Council have the authority to relieve the Chairman of the Navajo Tribal Council and the Vice Chairman of the Navajo Tribal Council of their executive and legislative authority and place them on administrative leave with pay? The District Court extended the time period of the TRO pursuant to Rule 18 of the Navajo Rules of Civil Procedure.\\nThe Supreme Court answered certified question Number 4 with a conditional yes. The Chairman and Vice Chairman may be put on administrative leave with pay and relieved of their executive and legislative authority if certain conditions are met.\\nThe first condition is two-pronged: 1) the Tribal Council must have reasonable grounds to believe that the Chairman or Vice Chairman has seriously breached his fiduciary trust to the Navajo people and; 2) administrative leave will be in the best interests of the Navajo people.\\nThe Supreme Court then identified \\\"reasonable grounds to believe that the official seriously breached his fiduciary trust to the Navajo people\\\":\\n1. Serious allegations of breach of fiduciary duty solicited under oath by a properly authorized investigatory body.\\n2. Serious allegations of criminal conduct which would amount to a felony solicited under oath by a properly authorized investigatory body.\\n3. Serious allegations combined with some evidence of any of the grounds for removal set out in 11 N.T.C. \\u00a7 211.\\n4. Serious allegations combined with some evidence of violation of tribal law which, if true, could result in removal.\\n5. Actual felony charges in federal or state court.\\n6. Criminal charge or civil suit arising from violation of the public trust in the Navajo courts.\\nThe second condition is that the action in fact be administrative leave and not removal.\\nThe third condition is that certain basic protections be afforded. These protections are:\\n1. The action must occur in a properly convened session of the Navajo Tribal Council at which a quorum is present.\\n2. There must be a properly adopted agenda.\\n3. The resolution by which the official is placed on leave must pass by a majority vote.\\n4. The resolution by which the official is placed on leave must not be a bill of attainder.\\nResolutions CF-4-89 and CMA-10-89 are acts of the legislative body and the presumption of validity attached at the moment of passage by the Tribal Council. The presumption is valid until rebutted. The burden of rebuttal is on those contesting the validity of the resolutions, in this case the defendants.\\nThe response to certified question Number 4 by the Supreme Court provides the elements necessary to rebut the presumption of validity.\\nAt trial defendants presented no evidence, either documentary or testamentary, on any issue.\\nAs to the issue of validity of the two resolutions, plaintiffs' burden of evidence consisted of introducing certified copies of the resolutions. At that point the burden of evidence shifted to the defendants to rebut the presumption of validity. In order to rebut a presumption, there must be evidence sufficient to overcome the presumption. The test in this case is not whether plaintiffs produced evidence to support the presumption but whether defendants produced evidence to rebut it. The defendants wholly failed to meet their burden. The plaintiffs proceeded, however, to support the presumption of validity through the introduction of evidence relevant to the guidelines established by the Supreme Court.\\nThe Court chooses to identify the evidence which supports the Court's conclusion on each of the elements in the Supreme Court response to certified question 4 and ultimately on the validity of the two resolutions. In addition, the Court will take notice of certain statutes contained in the Navajo Tribal Code.\\nMinutes of Tribal Council meetings from February 14, 1989 through March 10, 1989, were admitted into evidence. These minutes show procedural matters, content of discussion, knowledge of Tribal Council delegates and intent of the legislature. They were not admitted as proof that any allegations against any tribal officials are true.\\nAgain, transcripts of certain portions of the hearings before the Senate Select Committee were admitted into evidence. They were not admitted as to the truth of any allegations but that the allegations had been made.\\nAccording to the Supreme Court's response to certified question Number 4, Tribal Council is not required to conduct a formal evidentiary hearing before putting a Chairman or Vice Chairman on administrative leave. Tribal Council is required only to have reasonable grounds to believe that a breach of fiduciary trust has occurred and that administrative leave is in the best interests of the Navajo people. The Supreme Court said administrative leave is not a deprivation of life, liberty or property and that the due process (notice, hearing, opportunity to be heard, etc.) attendant to those deprivations do not apply. In the Matter of: Certified Questions II: Navajo Nation v. MacDonald, 6 Nav. R. 105, 118-119 (1989). The due process applicable to placing a Chairman or Vice Chairman on administrative leave is found in the conditions the Supreme Court set out for administrative leave. Id.\\nRESOLUTION CF-4-89\\nI. Tribal Council had reasonable grounds to believe that Peter MacDonald, Sr., has seriously breached his fiduciary trust to the Navajo people and that administrative leave was in the best interests of the Navajo people.\\nBREACH OF FIDUCIARY TRUST\\nA. There were serious allegations of breach of fiduciary duty solicited under oath by a properly authorized investigatory body.\\n1. Navajo Nation Exhibit 3, 2/2/89, Hearings before the Special Committee on Investigations, Select Committee on Indian Affairs, United States Senate at 28-29, 37-42, 52, 69-72, 78-79, 90-93 and Exhibit 3, 2/7/89 hearing, at 44-45, 51-53, 55-61, 66-67, 69,124-125.\\n2. Navajo Nation Exhibit 1, Tr. 2/14/89, pp. 30-31 (Statement of Peter MacDonald, Sr.):\\nI want to first say that I am here before you, as all of you knew, accused of one of the most serious crimes I can think of, betraying the trust that the Navajo people put in me, selling the power of my office for personal gain, enriching myself at the expense of the people who are among the poorest of the poor in America. That's what I have been accused of. I am outraged at these charges, but I know you must be outraged at something else too as we talk here today and yesterday. You must be outraged at the Navajo Tribal Government, not just me, but the whole tribal government has been held up as corrupt, pervaded by kick backs, payoffs and favoritism.\\n3. Defendants presented no evidence on the issue of whether there were serious allegations of breach of fiduciary duty.\\nAlthough the breach of fiduciary trust refers to that which belongs to the people, it is Tribal Council who determines whether there are reasonable grounds to believe that the trust has been breached. It is also Tribal Council who determines whether administrative leave is in the best interests of the Navajo people.\\nThe transcript of the hearings before the Senate Select Committee contains allegations that Chairman MacDonald solicited and received bribes and kickbacks from contractors doing business with the Navajo Nation, perpetrated a fraud on the Navajo Nation in the purchase of the Big Boquillas Ranch and realized a personal profit from the Big Boquillas transaction. These are allegations of breach of fiduciary duties.\\nFiduciary duties are those involved in handling the money and affairs of others with diligence, with good faith, and with disclosure of opportunity for private gain or benefit.\\nA review of the Tribal Council minutes from February 14, 1989, through February 17, 1989, show that all Tribal Council delegates who spoke were aware of the allegations made to the Senate Select Committee and that many had listened to audio tapes or seen video tapes of portions of those hearings. Some delegates had been directed by their chapters to take some action in regard to the allegations.\\nThe Tribal Council minutes for those days show that much discussion was devoted to the allegations and what action should be taken in response to those allegations.\\nFinally, the statements of Chairman MacDonald summarize the allegations and, if any member of Tribal Council was unaware of the allegations, the statements of Chairman MacDonald were a source of information.\\nB. There were serious allegations of criminal conduct which would amount to a felony solicited under oath by a properly authorized investigatory body.\\na. Navajo Nation Exhibit 3, 2/2/89, Hearings before the Special Committee on Investigations, Select Committee on Indian Affairs, United States Senate atpp. 32-33; 2/6/89 Hearing atpp. 99-102,106-107 and 113; 2/7/89 Hearing at pp. 75-79, 93-102 and 124-125.\\nb. Navajo Nation Exhibit 1, Tr. 2/14/89-2/17/89 (Discussion of Tribal Council Delegates).\\nc. Navajo Nation Exhibit 1, Tr. 2/14/89, pp. 30-31 (Statement of Peter MacDonald, Sr. set out above).\\nd. Defendants presented no evidence on the issue of whether there were serious allegations of criminal conduct.\\nPlaintiffs' evidence confirmed serious allegations against Chairman MacDonald made under oath by witnesses testifying before the Senate Select Committee which, if the allegations were brought as criminal charges, would constitute subornation of perjury (18 U.S.C. \\u00a7 1622); obstruction of congressional proceedings (18 U.S.C. \\u00a7 1505); obstruction of criminal investigations (18 U.S.C. \\u00a7 1510); and conspiracy (18 U.S.C. \\u00a7 371).\\nAs stated above, the Tribal Council minutes show that the delegates were aware of the proceedings before the Senate Select Committee and that Chairman MacDonald acknowledged there were serious allegations.\\nC. There were serious allegations combined with some evidence of violation of tribal law which, if true, could result in removal.\\n1. 11 N.T.C. \\u00a7 175. Limitation on expenditures by or on behalf of candidates; radio or television time\\n(a) The following sums shall be the maximum amounts which may be expended by or on behalf of any candidate in any Tribal Election. When anything of value other than money is expended or used by or on behalf of any candidate, it shall be considered as equivalent to money at its fair cash value. Necessary personal, traveling or subsistence expenses of any candidate himself shall not be included in the limitation and need not be reported.\\n(1) For the Office of the Chairman and Vice Chairman (combined sum) one dollar for each registered voter.\\n2. Navajo Nation Ethics in Government Law, 2 N.T.C. \\u00a7 3751 et seq., one of the penalties for which is removal or suspension from office. 2 N.T.C. \\u00a7 3757, (a) (1), (C).\\n3. Navajo Nation Exhibit 1, Tr. 2/14/89-3/10/89 (Tribal Council Delegates' discussion).\\n4. Navajo Nation Exhibit 1, Tr. 2/14/89, pp. 30-31 (Statements of Peter MacDonald, Sr. set out above).\\n5. Navajo Nation Exhibit 3, 2/2/89 Hearing at pp. 28-29, 68-72 (The MacDonald-Thompson campaign solicited and received monetary contributions and services of value from non-Navajo and Navajo Contractors) and Exhibit 3 attachments to Hearing transcript (list of payments and gratuities made by John Paddock to Chairman MacDonald).\\n6. Navajo Nation Exhibit 4, Candidate's Campaign Expense Statement for Peter MacDonald, Sr., 11/20/86.\\n7. Defendants presented no evidence on the issue of whether there were serious allegations of violation of tribal law.\\nThe Plaintiffs' evidence confirmed serious allegations made before the Senate Select Committee which suggests a violation of the Navajo election laws for knowingly filing a false report which failed to disclose contributions of a non-Navajo, the penalty for which is removal from office. 11 N.T.C. \\u00a7 177. Such testimony also demonstrates alleged violations of the campaign expense ceiling (11 N.T.C. \\u00a7 175), with a penalty of removal from office. 11 N.T.C. \\u00a7 176.\\nThe Plaintiffs' evidence also confirmed that the testimony contained serious allegations of conduct which is unlawful under the Navajo Nation Ethics in Government Law, 2 N.T.C. \\u00a7 3751 et seq., one of the penalties for which is removal or suspension from office. 2 N.T.C. \\u00a7 3757 (a) (1) (A), (C). Among the allegations of misconduct under the Ethics Law are: using official authority to realize a personal financial gain (2 N.T.C. \\u00a7 3753 (b)); using confidential information to further personal economic interests (2 N.T.C. \\u00a7 3753(c)); acquiring a financial interest in a tribal transaction raising a conflict of interest with official responsibilities (2 N.T.C. \\u00a7 3753 (d)(1)); taking official action in a matter in which there is a personal economic interest (2 N.T.C. \\u00a7 3753(e) (1)); securing a personal economic interest in a tribal contract (2 N.T.C. \\u00a7 3753(f)(1); and acceptance of gratuities and loans from persons doing business with the Navajo Nation (2 N.T.C. \\u00a7 3753 (m)).\\nThe statements of Chairman MacDonald acknowledged allegations of \\\"betraying the trust that the Navajo people put in me, selling the power of my office for personal gain, enriching myself at the expense of the people . not just me, but the whole tribal government has been held up as corrupt, pervaded by kick backs, payoffs and favoritism.\\\" The Tribal Council minutes show the delegates were aware of these allegations made before the Senate Select Committee. In addition, Chairman MacDonald informed them of the allegations.\\nBEST INTEREST\\nD. Tribal Council found that administrative leave was in the best interests of the Navajo people.\\n1. Navajo Nation Exhibit 2, Resolution CF-4-89,\\nWhereas Clause 3: The Navajo Tribal Council deems that a state of emergency exists in the management of the Navajo Tribal Council caused by the unique circumstances and events relating to the Office of the Chairman and the serious allegations raised personally against Peter MacDonald, Sr.\\n2. Navajo Nation Exhibit 1, Tr. 2/14/89-2/17/89 (Tribal Council delegates' discussion).\\n3. Navajo Nation Exhibit 1, Tr. 2/16/89, pp.27-30 (Statements of Peter MacDonald, Sr.).\\na. I also want to thank you for listening to me the day before yesterday when I made my remarks here, for taking my remarks seriously and for avoiding precipitous actions which would have created even worse crises. I want to ask you to give these remarks the same fair-minded consideration. I don't pretend to have all the answers, but I do have some suggestions. Yes, we need to take action and that's exactly what we are going to do now. But the action needs to be based on principles and on concern for the long run implications of what we do. (p. 27)\\nb. Let me conclude by saying I do not want to go on leave without telling you also what an honor it has been to preside over the sessions and to chair these deliberations. I have real confidence in your wisdom, your dedication to the best interests of our people. Your ability to respond to a larger vision of what the future holds is very important and your willingness as has been expressed here to put aside personal grievances and self-interests in order to do what is best, what is fair and what is right, (p. 29)\\n4. Defendants introduced no evidence on the issue of whether Tribal Council found administrative leave to be in the best interests of the Navajo people.\\nIn addition to the presumption of validity, there is another presumption which attaches to legislative acts. That is the presumption that the legislature acted from proper motives.\\nA second presumption guiding the courts is that the legislators acted from proper motives. If the legislative body did a proper and legal act, the court will not examine the motives of the legislators. Motives will be examined only to the extent needed to determine if the legislative action should be invalidated on grounds of fraud and bad faith. Benally, supra, at 275.\\nA proper motive of a legislative body is to act in the best interests of the people. This duty was imposed upon Navajo leaders from the earliest times and was recognized by the Navajo Supreme Court in its response to certified question number 4.\\nThe Tribal Council minutes indicate the best interest of the Navajo Nation was a major consideration of the delegates. The words of Chairman MacDonald are in recognition of the duties of the delegates to act and ascribe proper motives to the actions of Tribal Council.\\nFinally, Resolution CF-4-89 acknowledges an emergency has been created by the allegations. When Tribal Council is faced with an emergency it may not properly decline to act.\\nADMINISTRATIVE LEAVE OR REMOVAL\\nII. Resolution CF-4-89 (Placing Peter MacDonald, Sr., on Administrative Leave with Pay and Removing All Legislative and Executive Authority) placed Peter MacDonald, Sr. on administrative leave with pay and did not remove him from Office.\\nA. Resolution CF-4-89: Placing Peter MacDonald, Sr., on Administrative Leave with Pay and Removing All Legislative and Executive Authority.\\n1. Whereas clause 2: On February 16, 1989, the Chairman of the Navajo Tribal Council, Peter MacDonald, Sr., allowed the Vice Chairman to preside over the Navajo Tribal Council session and indicted that he be placed on administrative leave with pay; and\\n2. Whereas clause 3: The Navajo Tribal Council deems that a state of emergency exists in the management of the Navajo Tribal Council caused by the unique circumstances and events relating to the Office of the Chairman and the serious allegations raised personally against Peter MacDonald, Sr.\\n3. Resolved clause 1: The Navajo Tribal Council hereby places Peter MacDonald, Sr., on administrative leave with pay until directed otherwise by the Navajo Tribal Council.\\n4. Resolved clause 2: Furthermore, the Navajo Tribal Council hereby removes all executive and legislative authority delegated by law to the Chairman of the Navajo Tribal Council from Peter MacDonald, Sr., while on administrative leave and until otherwise directed by the Navajo Tribal Council.\\nB. Navajo Nation Exhibit 1, Tr. 2/14/89-2/17/89 (Tribal Council Delegates' discussion)\\nC. Navajo Nation Exhibit 1, Tr. 2/14/89 pp. 30-35 (Statements of Peter MacDonald, Sr.):\\n1. I'm trying to talk about what is best for the Navajo people, not what's best for me. What does that mean? It means that there are some things you don't want MacDonald doing right now, based on the allegations, I'm sure that have been stated here, by signing checks or anything that authorized him to commit funds, and you want the tribal government to keep on functioning on a day by day basis. I'm sure you do not prefer a system of government like we see in South America where they have conflicts every couple of months. Don't you want to identify those functions that you think MacDonald shouldn't fulfill and those he can continue to discharge until you can make a determination? (p. 33)\\n2. I want to first say that I am here before you, as all of you know, accused of one of the most serious crimes I can think of, betraying the trust that the Navajo People put in me, selling the power of my office for personal gain, enriching myself at the expense of the people who are among the poorest of the poor in America. That's what I have been accused of. I am outraged at these charges, but I know you must be outraged at something else too as we talk here today and yesterday. You must be outraged at having been held up in ridicule. You must be outraged at the way the Navajo Tribal Government, not just me, but the whole tribal government has been held up as corrupt, pervaded by kickbacks, payoffs and favoritism. All I can tell you is I'm innocent and I'm confident that a court of law will find me innocent of any wrong doing, but I suspect that being innocent won't be enough to stand political avalanche that has been unleashed by the Senate Investigating Committee in Washington, D.C. I know you must be furious at me for anything I did or might have done to give credibility to these attacks from Washington. I know some of you just feel that it really doesn't matter what I did or didn't do, what matters is that the world now thinks that I did, that your Chairman somehow has lost all credibility, that the tribal government has lost all credibility, and that sweeping action is essential to restore some faith in our government and our Council. I know, too, that this council must do something, must do something definitive if you are not to lose face when you return to your chapters. That I know. (pp. 30-31)\\nD. Navajo Nation Exhibit 1, Tr, 2/16/89, pp. 27-30 (Statements of Peter MacDonald, Sr.):\\n1. So let me put these suggestions to you:\\n(1) I propose that I go on administrative leave as outlined in the resolution presented by Don Benally as the substitute motion: (2) I propose that the Vice Chairman assume the post of acting Chairman during this period; (3) I request that the Council permit me to retain an office and staff to have access to such tribal records and to have the cooperation of officials so that I might proceed to clear my name and the name of the Navajo Government of the slurs and slanders of which we are accused. In that connection, I ask your leave to retain Counsel to advise me on legal issues and implications of those accusations and to represent me in my dealing with officials of the Federal Government on these matters because effective legal representation can be critical in securing a fair outcome, (p. 29)\\n2. I will now leave the Chair to go on leave and give the Vice Chairman the Chair and hopefully that you will use judgment to make your decision, as I've said earlier, independently with a great deal of soul-searching, remembering the words that we have spoken to each other over the past few days. Thank you very much. (p. 30)\\nE.ll N.T.C. \\u00a7 211\\nThe Chairman, Vice Chairman and all members of the Tribal Council are subject to removal in the following manner:\\n(1) For just cause:\\n(D) Chairman and Vice Chairman absent for three consecutive months without permission of Tribal Council.\\nThe Navajo Nation Supreme Court, in its response to certified question number 4, provided guidelines for distingishing between administrative leave and removal. These guidelines were met in the matter of Peter MacDonald, Sr. Resolution CF-4-89 and the transcript of Tribal Council minutes from February 14, 1989 through February 17, 1989 show that an unusual situation of an emergency nature was facing the Navajo Nation as a result of the content of certain testimony before the Senate Select Committee and that placing Peter MacDonald, Sr. on leave would be in the best interests of the Navajo Nation.\\nResolution CF-4-89 grants leave until further order of the Navajo Tribal Council.\\nThe minutes of Tribal Council reveal extensive discussion of whether the Chairman was being put on administrative leave or removed. The Tribal Council delegates who opposed putting the Chairman on leave are the only ones who raised the issues of removal and punishment. The delegates who spoke in favor of administrative leave remained adamant that leave was neither removal nor punishment. The comments of Mr. MacDonald himself show that he understood Tribal Council could limit or modify his powers. Further, he himself proposed that he go on administrative leave and did in fact place himself on administrative leave.\\nFinally, 11 N.T.C. \\u00a7 211, 1, (D) makes leave not authorized by Tribal Council a ground for removal. This implies that the Chairman legitimately may be on leave with the consent of the Tribal Council.\\nPROPER LEGISLATIVE PROCEDURE\\nIII. The basic protections required by the Supreme Court were afforded to Peter MacDonald.\\nA. Resolution CF-4-89 was passed in a properly convened session of the Navajo Tribal Council at which a quorum was present.\\nQUORUM\\n1. 2 N.T.C. \\u00a7 162 Number; time; duration\\n(a) There shall be four regular sessions of the Navajo Tribal Council each year.\\n2. 2 N.T.C. \\u00a7 172 Quorum\\n(a) A quomm shall consist of a simple majority of all voting members of the Navajo Tribal Council.\\n3. Navajo Nation Exhibit 1, Tr. 2/14/89, p. 1\\na. \\\"The meeting was called to order by Chairman Peter MacDonald, Sr., at 10:15 A.M., with a quomm of 63 council delegates present.\\\"\\nb. \\\"Chairman: Welcome to the regular Winter Session of the Navajo Tribal Council. The Winter Session of the Navajo Tribal Council will now come to order. We do have a quomm.\\\"\\n4. Navajo Nation Exhibit 1, Tr. 2/17/89, p. 1\\na. \\\"The council meeting was called to order by Chairman Pro Tempore Marshall Plummer at 2:55 P.M. with (55) Council Members present. INVOCATION: Council Delegate Nelson German.\\\"\\nb. \\\"CHAIRMAN: Members of the Tribal Council, Audience, Officials of the Bureau of Indian Affairs and Indian Health Service, Acting Chairman of the Tribe - Johnny R. Thompson, we appreciate you being here with us to hear us deliberate on this very important agenda. As all of you know, several events have happened since two or three days ago and as of yesterday a bigger event happened, wherein, the Chairman of our Tribe, Mr. Peter MacDonald, announced to the Council and to the public that he was taking administrative leave with pay. He gave a speech which I thought touched the hearts of each one of us, and we were most appreciative of his efforts and his feelings. After that, the Chair was turned over to the Vice Chairman to take over as the chairman of this council. And a vote was taken thereafter, wherein, the substitute motion recognizing the Vice Chairman, Mr. Johnny R. Thompson, to head this Council was defeated, along with other measures that were included in that particular resolution.\\n5. Defendants presented no evidence on the issue of whether Tribal Council was properly convened with a quorum present.\\nWINTER SESSION PROPERLY CONVENED\\nThe winter session of the Navajo Tribal Council was properly convened. 2 N.T.C. \\u00a7 162 (a) requires Tribal Council to meet in at least four sessions each year. These are commonly referred to as the winter, spring, summer and fall sessions. The winter session was convened with a quorum present. There was also a quorum on February 17,1989, when Resolution CF-4-89 was passed. 2 N.T.C. \\u00a7 172 (a) provides that a quorum of Tribal Council shall consist of a simple majority of the total membership of Tribal Council.\\nThe main motion which cited that myself and Mr. Irving Billy would become Chairman Pro Tern and Vice Chairman Pro Tern was passed, and it is for this reason that we are up here today. I want you as Council Delegates and Tribal leaders to know that our role is to facilitate, to coordinate the meetings and to address all of the items that are on this particular agenda that was approved by this Council. We do not have any authority over the executive branch whatsoever. And I want to make that very clear, not only to you as the Tribal Council Delegates and Tribal Leaders, but also for the Navajo Public. Navajo Nation Exhibit 1, Tr. 2/17/89, at p. 1.\\nAGENDA PROPERLY ADOPTED\\nB. There was a properly adopted agenda\\n1. Navajo Nation Exhibit 1, Tr. 2/14/89.\\n2. Navajo Nation Exhibit 1, Tr. 2/15/89, p. 1. (Statement of Peter MacDonald): \\\"Members of the Tribal Council: The discussion yesterday centered around preparing the Agenda of the Navajo Tribal Council Winter Session. After thorough discussion, we have agreed upon an agenda and that particular agenda that was agreed to by the Council by vote, I'd like to have that handed out to the Members of the Council and read.\\\"\\n3. Navajo Nation Exhibit 1, Tr. 2/15/89, pp. 1-2. (The AGENDA of THE NAVAJO TRIBAL COUNCIL, February 14, 1989, WINTER SESSION was read into the record. Item 5 is \\\"Placing the Chairman and Vice Chairman on Leave with Pay; Appointing Interim Chairman and Vice Chairman.\\\")\\n4. Defendants presented no evidence on the issue of a properly adopted agenda.\\nOn February 14, 1989, the agenda prepared by the Advisory Committe was rejected. A motion was made that Advisory Committee prepare a new agenda. (Exhibit 1, Tr. 2/14/89, pp. 7-8). A substitute motion was then made to place four items on the agenda (Exhibit 1, Tr. 2/14/89, pp. 8-9). The main motion subsequently became one to adopt an agenda which included all those items on the initially proposed agenda plus the items contained in the original substitute motion and items subsequently added by request to the substitute motions. (Exhibit 1, Tr. 2/14/89, pp. 56-57). The substitute motion was passed by 53 in favor, 29 opposed, 4 abstaining and 2 not voting. (Exhibit 1, Tr. 2/14/89, p. 52). At the time the agenda was adopted, the only dispute was over which agenda should be adopted and not by what procedures the agenda should be prepared. (Exhibit 1, Tr. 2/14/89, pp_).\\nFurther, Chairman MacDonald stated that an agenda had been adopted and that agenda was read into the record at the direction of Chairman MacDonald. That agenda contained an item of placing the Chairman and Vice Chairman on leave with pay.\\nMAJORITY VOTE\\nC. The resolution by which Peter MacDonald, Sr. was placed on leave passed by a majority vote.\\n1. 2 N.T.C. \\u00a7 172. Quorum\\n(b) No resolution or motion of the Navajo Tribal Council shall be passed or otherwise acted upon unless a quorum is present. Where a quorum is present, any motion or resolution shall be passed if it receives a majority of all votes cast, irregardless of how many members actually vote and how many abstain, unless a larger proportion than a simple majority has been properly stipulated in advance.\\n2. Navajo Nation Exhibit 2: Resolution CF-4-89: Certification showing 49 in favor, 13 opposed, 5 abstaining and 0 not voting.\\n3. Navajo Nation Exhibit 1, Tr. 2/17/89, p. 1:\\n\\\"The Council meeting was called to order by Chairman Pro Tempore Marshall Plummer at 2:55 p.m. with (55) Council Members present. INVOCATION: Council Delegate Nelson German.\\\"\\n4. Navajo Nation Exhibit 1, Tr. 2/17/89, p. 23 (Showing vote on Resolution CF-4-89)\\n5. Defendants presented no evidence on the issue of whether the resolution passed by a majority vote.\\nThe Tribal Code requires only that resolutions pass by a majority of those delegates voting and not a majority of those present.\\nThe certification to Resolution CF-4-89 and the Tribal Council minutes show that 67 delegates voted and that 49 voted in favor of the resolution.\\nBILL OF ATTAINDER\\nD. Resolution CF-4-89 placing Peter MacDonald, Sr. on administrative leave was not a bill of attainder.\\n1. Resolution CF-4-89 did not legislatively determine guilt.\\na. Whereas Clause 3: The Navajo Tribal Council deems that a state of emergency exists in the management of the Navajo Tribal Council caused by the unique circumstances and events relating to the Office of the Chairman and the serious allegations raised personally against Peter MacDonald, Sr.\\nb. Resolved Clause 1: The Navajo Tribal Council hereby places Peter MacDonald, Sr., on administrative leave with pay until directed otherwise by the Navajo Tribal Council.\\nc. Resolved Clause 2: Furthermore, the Navajo Tribal Council hereby removes all executive and legislative authority delegated by law to the Chairman of the Navajo Tribal Council from Peter MacDonald, Sr., while on administrative leave and until otherwise directed by the Navajo Tribal Council.\\n2. Navajo Nation Exhibit 1, Tr. 2/14/89-2/17/89 (Tribal Council delegates discussion)\\n3. Defendants presented no evidence that Resolution CF- 4-89 was a bill of attainder.\\nCASE LAW ON BILL OF ATTAINDER\\nThe Navajo Nation Supreme Court in its response to certified question number 4 defined bill of attainder and provided tests for determining if legislation is in fact a bill of attainder.\\nAlthough defendants presented no evidence on the issue of bill of attainder, Defendant MacDonald did cite to the Court the case of Nixon v. Administrator of General Services, 433 U.S. 425 (1977). Nixon was also cited by the Navajo Nation Supreme Court in its discussion of bills of attainder.\\nNixon was a challenge to an act passed by Congress. The act provided that the Administrator of General Services take custody of the papers and tape recordings made by Nixon while he was President, and develop regulations for public access. Nixon challenged the act on four grounds, one ground being that the act was a bill of attainder.\\nThe U.S. Supreme Court held the act was not a bill of attainder but rather was nonpunitive legislative policy-making justified by a public need.\\nThe Court in Nixon judged the act by several tests and by none of them found a bill of attainder.\\nHISTORICAL TEST\\nThe first test was historical, what was regarded as legislative punishment in England. Those were generally imprisonment, banishment, and the punitive confiscation of property by the sovereign. In addition, the American experience had added one more to the historical category, that being \\\"a legislative enactment designated individuals or groups from participation in specified employments or vocations.\\\" Nixon, 53 LEd 2d at 910-911.\\nThe Court found none of the above applied. Nixon claimed that the tapes and papers were his personal property. The act provided that Nixon would receive \\\"just compensation.\\\" \\\"This undermines even a colorable contention that the Government has punitively confiscated appellant's property, for the 'owner' [thereby] is to be put in the same position monetarily as he would have occupied if his property had not been taken.\\\" Id.\\nFUNCTIONAL TEST\\nThe Court, mindful that \\\"new burdens and deprivations might be legislatively fashioned that are inconsistent with the bill of attainder guarantee\\\" applied the functional test. The functional test examined the law in dispute to determine whether it \\\"reasonably can be said to further nonpunitive legislative purposes.\\\" The Court found that there were public interests or purposes served by the act and therefore it was not designed to inflict punishment on Nixon. Nixon, at 912-913.\\nThe functional test reguires an analysis of the public interests which are furthered by the legislation. This analysis is possible without resort to the legislative record or other sources.\\nMOTIVATIONAL TEST\\nThe third test, the motivational one, requires an examination of the legislative record and other evidentiary sources to determine whether there was an intent to punish. The Court examined the legislative record and the evidence and found no intent to punish. The Court did find that the record supported its conclusions under the functional test. Nixon, at 913-914.\\nThe Court stated that it is not necessary that the legislature actually state blameworthiness or punishment. \\\"But the decided absence from the legislative history of any congressional sentiments expressive of this purpose is probative of nonpunitive intentions and largely undercuts a major concern that prompted the bill of attainder prohibition: the fear that the legislature, in seeking to pander to an inflamed popular constituency, will find it expedient openly to assume the mantle of judge - or worse still, lynch mob.\\\" Nixon, at 914.\\nIn furtherance of the motivational test, the Court examined the provisions of the act itself and found no intent to punish. Nixon, at 915. The Court also looked at whether a less burdensome alternative existed by which the legislature could have achieved its purposes. Nixon had suggested that a provision for civil suit by the Attorney General or the Administrator of General Services would be sufficient to accomplish the purposes of the act. The Court did not find this less burdensome:\\nWe have no doubt that Congress might have selected this course. It very well may be, however, that Congress chose not to do so on the view that a full-fledged judicial inquiry into appellant's conduct and reliability would be no less punitive and intrusive than the solution actually adopted. For Congress doubtless was well aware that just three months earlier, appellant had resis ted efforts to subject himself and his records to the scrutiny of the Judicial Branch. Nixon, at p. 916\\nIn the instant case, there was some discussion at various proceedings on whether all tests must be met to find a bill of attainder, or whether one is sufficient. There is absolutely no basis in the instant case to find a bill of attainder under any of the tests. For purposes of this case, it is irrelevant whether the tests are to be applied separately and independently or whether they are cumulative.\\nThis Court is of the opinion that its findings and above conclusions on the conditions and elements of administrative leave satisfy the tests for bill of attainder. The Court will, however, discuss the application of the tests to Resolution CF-4-89.\\nThe Navajo Nation Supreme Court has already stated there is no property interest in public office. In Re Removal of Katenay, 6 Nav. R. 81 (1989); In the Matter of Certified Questions II: Navajo Nation v. MacDonald, 6 Nav. R. 105, 119 (1989). This concept is also recognized in Arizona and New Mexico. Mecham v. Gordon 156 Ariz. 279 (1988); Reese v. Dempsey, 48 N.M. 417, 152 P.2d 157, 163 (1944). Even if some property interests were to be found, the administrative leave is with pay so that monetarily Mr. MacDonald is in the same position he would be in were he not on administrative leave.\\nFurther, Chairman MacDonald is not barred from specified employment or vocations. The Court understands \\\"specified employments\\\" to mean working for a specified employer such as the federal government, the tribal government, General Motors, etc., and \\\"vocations\\\" to mean types of employment or careers such as clergyman, computer programmer, medical doctor, etc. Chairman MacDonald is not barred from tribal employment. It would be a contradiction to being on administrative leave with pay. The Court is not prepared to say that being a Chairman is a vocation, but Chairman MacDonald is certainly not barred from being Chairman of the Navajo Tribal Council.\\nThere are public purposes and interests which are furthered by the administrative leave. Certainly the need to demonstrate to the public that the Navajo Nation has the ability and the resources to handle governmental crisis is a public purpose.\\nThe minutes of Tribal Council discussion do not reveal any desire or intent to punish on the part of the proponents of administrative leave. Neither is this found in the resolution itself. Although the resolution is addressed to a specific individual, it is not punishment by any test the Court can apply. The U.S. Supreme Court in Nixon most eloquently expresses this Court's views on the matter:\\nBy arguing that an individual or defined group is attained whenever he or it is compelled to bear burdens which the individual or group dislikes, appellant removes the anchor that ties the bill of attainder guarantee to realistic conceptions of classifications and punishment.... However expansive the prohibition against bills of attainder, it surely was not intended to serve as a vari ant of the equal protection doctrine, invalidating every Act of Congress or the States that legislatively burdens some person or groups but not all other plausible individuals. In short, while the Bill of Attainder Clause serves as an important 'bulwark against tyranny,' United States v Brown, it does not do so by limiting Congress to the choice of legislating for the universe, or legislating only benefits, or not legislating at all. Nixon, at p.908-909.\\nRESOLUTION CMA-10-89\\nI.Tribal Council had reasonable grounds to believe that Johnny R. Thompson had seriously breached his fiduciary trust to the Navajo people and that administrative leave was in the best interests of the Navajo people.\\nA. There were serious allegations of breach of fiduciary duty solicited under oath by a properly authorized investigatory body.\\n1. Navajo Nation Exhibit 1, Tr. 2/14/89-3/10/89 (Tribal Council delegates' discussion)\\n2. Navajo Nation Exhibit 3, 2/7/89, Senate Select Committee Hearings at pp. 55-61\\n3. Navajo Nation Exhibit 2, Resolution CMA-6-89, passed March 1, 1989, Amending the Plan of Operation of the Navajo Nation Department of Justice; Clarifying the Legal Powers, Authority and Status of Persons Occupying the Positions of Attorney General and Deputy Attorney General; Authorizing and Directing the Navajo Nation Department of Justice to Institute Legal Proceedings Regarding the Big Boquillas Ranch Transaction; and Confirming the Authorization and Directive to the Attorney General to Defend the Navajo Tribal Council in Certain Proceedings pending in Tribal Court\\n4. Whereas Clauses 10-11:\\nWhereas 10: On February 17, 1989, the Navajo Tribal Council received (a) the Final Report of the Navajo Tribal Special Counsel Concerning the Big Boquillas Ranch Purchase, authored by Michael D. Hawkins and dated January 27, 1989 (the \\\"Hawkins Report\\\"); (b) a Supplemental Report to the Hawkins Report dated February 17, 1989, appended to which were summaries of sworn testimony of certain witnesses who appeared before the United States Senate Select Committee on Indian Affairs (the \\\"Select Committee\\\"); and (c) an opinion and recommendation from the Navajo Nation Attorney General concerning legal action by the Navajo Nation with respect to the Big Boquillas Ranch transaction; and\\nWhereas 11: The Hawkins Report, as supplemented, demonstrates good cause to believe the Navajo Nation, and in particular the Navajo Tribal Council, was defrauded by the sellers, Peter MacDonald, Sr., while serving as the Chairman of the Navajo Tribal Council, and others in connection with the Nation's purchase of the Big Boquillas Ranch.\\nThere were allegations made to the Senate Select Committee that the transaction of purchasing the Big Boquillas Ranch had involved a fraud upon the Navajo Nation and the realization of personal profit by some of those involved in the transaction.\\nResolution CMA-6-89 shows that Michael Hawkins' report of his investigation of the Big Boquillas purchase raised sufficient questions regarding the purchase so as to become one basis for directing the Navajo Nation Department of Justice to institute legal proceedings regarding the Big Boquillas transaction.\\nAt trial Defendant Thompson was called by the plaintiffs as a witness. He said that he had been present in the summer of 1988 when Hawkins had made an oral report to a joint committee of the Advisory Committee and the Budget and Finance Committee but that he (Thompson) had never conveyed any information to Tribal Council regarding that report. Thompson also stated that he had signed documents in furtherance of the Big Boquillas purchase but that he did not recall receiving a report from the Navajo Nation Justice Department advising against signing the documents.\\nThere was sufficient opportunity and reasonable grounds for Vice Chairman Thompson, in carrying out his fiduciary duties to the Navajo Nation, to seek to ascertain that the Big Boquillas transaction was free of serious questions as to the good faith and disclosures required in the transaction. There are many indications that Vice Chairman Thompson failed to avail himself of the opportunity. There is no evidence that he took any steps to assure that there were no serious questions regarding the Big Boquillas purchase. Yet the questions were serious enough that soon after the purchase, the Navajo Nation engaged the services of Michael Hawkins to investigate.\\nB. There were serious allegations combined with some evidence of violation of tribal law which, if true, could result in removal.\\n1. Ethics in Government Act.\\na. 2 N.T.C. \\u00a7 3753 (a)\\nb. 2 N.T.C. \\u00a7 3753 (b) (2) (F)\\nc. 2 N.T.C. \\u00a7 3753 (m) (1)\\nd. 2 N.T.C. \\u00a7 3754 (C)\\ne. 2 N.T.C. \\u00a7 3755 (a) (9)\\nf. 2 N.T.C. \\u00a7 3757 (a) (1) (A)\\n2. 11 N.T.C. \\u00a7 171-179, Subchapter 9. Campaign Expense; contributions\\n3. Navajo Nation Exhibit 4; and Exhibit 3, 2/2/89, at 28-29, 32-33, 68-72 (see also Exhibit 3 attachment, Paddock list of payment and gratuities to MacDonald), and testimony of Gloria Dennison.\\n4. Navajo Nation Exhibit 5, Memorandum to Attorney General Michael Upshaw dated 2/21/89 from Chairman Peter MacDonald, Sr. and Vice Chairman Johnny R. Thompson terminating Upshaw's services and signed by MacDonald and Thompson.\\n5. Navajo Nation Exhibit 6, Memorandum to Anthony Lincoln dated 3/7/89 from Chairman MacDonald and Vice Chairman Thompson appointing Lincoln, Executive Secretary of the Navajo Nation and signed by MacDonald and Thompson.\\n6. Navajo Nation Exhibit 7, Letter to Eric Dahlstrom dated 3/9/89 from Chairman MacDonald and Johnny R. Thompson barring Dahlstrom from sitting in Tribal Council Chambers and signed by MacDonald and Thompson.\\n7. Navajo Nation Exhibit 10, Memorandum to Eric Dahlstrom dated 2/17/89 from Johnny R. Thompson, Chairman (Acting) terminating Dahlstrom's services and signed by Johnny R. Thompson. The memorandum contains the statement \\\"On February 16, 1989, I assumed the Chairmanship of the Navajo Tribal Council pursuant to 2 N.T.C. \\u00a7 284(c).\\\"\\n8. Navajo Nation Exhibit 11, Memorandum to Wilbur Kellogg, Chief of Police, dated 3/10/89, from Chairman MacDonald and Vice Chairman Thompson directing Kellogg to secure the Tribal Council Chambers and Legislative Offices and signed by MacDonald and Thompson.\\n9. Navajo Nation Exhibit 12, Memorandum dated 3/10/89 labeled EXECUTIVE ORDER to Wilbur Kellogg, Chief of Police, from Chairman MacDonald and Vice Chairman Thompson and signed by MacDonald and Thompson. The memorandum reads in full:\\nWe hereby issue this Order for you to protect the Office of the Chairman/Vice Chairman from damage or takeover. You still operate under the direction of the undersigned Chairman and Vice Chairman of the Navajo Nation. The Division of Public Safety is directed and ordered to recognize Peter MacDonald, Sr. as Chairman and Chief Executive Officer of the Navajo Nation and Johnny R. Thompson as Vice Chairman and Chief Executive Officer when Chairman is out of Window Rock, Arizona.\\n10. Navajo Nation Exhibit 13; Memorandum dated 3/10/89 to Senator James Henderson from Chairman MacDonald and Vice Chairman Thompson terminating Henderson's services and signed by MacDonald and Thompson.\\n11. Navajo Nation Exhibit 14 (Exhibit 14 consists of 58 memoranda and 4 letters written between February 20, 1989, and March 9, 1989 with inside address and signature line indicating they are from Peter MacDonald, Sr., Chairman of the Navajo Tribal Council, but signed by Johnny R. Thompson. All correspondence is in the nature of conducting tribal business.\\n12. Navajo Nation Exhibit 2\\na. Resolution CF-4-89, Placing Peter MacDonald, Sr., on Administrative Leave with Pay and Removing All Legislative and Executive Authority, passed February 17, 1989\\nb. Resolution CF-5-89, Transferring the Office of Legislative Affairs Completely and Directly under the Navajo Tribal Council, passed February 21, 1989\\nc. Resolution CMA-6-89, Amending the Plan of Operation of the Navajo Nation Department of Justice; Clarifying the Legal Powers, Authority and Status of Persons Occupying the Positions of Attorney General and Deputy Attorney General; Authorizing and Directing the Navajo Nation Department of Justice to Institute Legal Proceedings Regarding the Big Boquillas Ranch Transaction; and Confirming the Authorization and Directive to the Attorney General to Defend the Navajo Tribal Council in Certain Proceeding pending in Tribal Court, passed March 1, 1989\\nd. Resolution CMA-10-89, Placing Vice Chairman Johnny R. Thompson on Administrative Leave with Pay Until He is Cleared of Allegations of Wrong-doing; Appointing an Intertim Chairman and Interim Vice Chairman of the Navajo Tribal Council\\n13. Opening statement of counsel for Defendant Thompson.\\n14. Defendants presented no evidence on the issue of violation of tribal law.\\nEach candidate whose name appears on a ballot in a Navajo Tribal election is required to file an itemized statement of receipts and expense with the Board of Election Supervisors (11 N.T.C. \\u00a7 172(a)).\\nThis statement must contain a complete record of receipts and expenditures (11 N.T.C. \\u00a7 172(b)). 11 N.T.C. \\u00a7 175(a)(1) sets a ceiling on campaign expenditures of $1.00 per registered voter. This amount applies to the combined Office of Chairman and Vice Chairman. A candidate who expends more money than allowed is guilty of an offense (11 N.T.C. \\u00a7 176). A candidate who knowingly files an incorrect statement is subject to a penalty and may be barred from holding office (11 N.T.C. \\u00a7 177). It is unlawful for a corporation or nonmember of the Navajo Tribe to make a contribution (11 N.T.C. \\u00a7 179).\\nThe Candidates' Campaign Expense Statement which is signed by Peter MacDonald shows the total amount of contributions as $69,430.95 and the total amount of expenditures as $75,191.29.\\nThe testimony before the Senate Select Committee contained allegations that campaign contributions had been solicited and obtained from Navajo and non-Navajo contractors. John Paddock, a non-Navajo, testified before the Senate Select Committee that he had contributed air transportation worth $39,000.00 to the MacDonald-Thompson campaign. This contribution was not disclosed and, if true, would cause the MacDonald-Thompson campaign to exceed the expenditures allowed by 11 N.T.C. \\u00a7 175(a) (1).\\nAt trial, Vice Chairman Thompson was called as a witness by plaintiffs. Under oath, he stated that he did not recall filing the required campaign statement. If true, the Vice Chairman could be subject to the penalty provision of subchapter 9 of Title 11 of the Navajo Tribal Code.\\nThe Ethics in Government Act establishes standards of conduct for tribal officials and, if a violation of the Act is proven, one sanction is removal from office. 2 N.T.C. \\u00a7 3757 (a) (1) (A). The standards of conduct include conduct reflecting credit upon the Navajo people and government and complying with \\\"all applicable laws of the Navajo Nation with respect to their conduct in the performance of the duties of their respective office or employment,\\\" (2 N.T.C. \\u00a7 753 (a)); refraining from \\\"adversely affecting the confidence of the people in the integrity of the government of the Navajo Nation,\\\" (2 N.T. C. \\u00a7 3753 (b)(2)(F); neither soliciting nor accepting gifts, favors, benefits, etc. in an aggregate amount in excess of $100.00 (2 N.T.C. \\u00a7 3753 (m)(l); filing by elected officials and employees a Statement of Economic Interests which includes all required information for the previous twelve months (2 N.T.C. \\u00a7 3754(c)), such information gift or loans in excess of $100.00.\\nIf the air transportation Paddock alleged he contributed is true, it appears that it should have been reported under the elections laws and/or the Ethics in Government Act.\\nThe memoranda and letters signed by Vice Chairman Thompson between February 17, 1989, and March 10, 1989, raise questions of violation of tribal laws. On February 17, 1989, the Navajo Tribal Council placed Chairman Peter MacDonald on administrative leave and relieved him of his executive and legislative powers until otherwise directed by Tribal Council. In addition, Tribal Council passed Resolution CMA-6-89 relative to the Navajo Nation Department of lustice Plan of Operation, and Resolution CF-5-89 relative to the Office of Legislative Affairs.\\nDespite these resolutions, Defendant Thompson continued to act in concert with Defendant MacDonald contrary to the provision of Resolutions CF-4-89, CF-5-89, and CMA-6-89.\\nThe memoranda and letters contain indications that Vice Chairman Thompson regarded Defendant MacDonald as having full executive and legislative authority. At trial, counsel for Defendant Thompson, in his opening statement, said that Thompson was following the instruction of Chairman MacDonald. When Thompson was called by the plaintiffs he admitted the signature on the documents contained in Exhibits 5-14 was his.\\nTribal Council found reasonable grounds to believe there were serious allegations against Chairman MacDonald of breach of fiduciary trust sufficient to make administrative leave in the best interests of the Navajo people. For Defendant Thompson to act contrary to Resolution CF-4-89 could subject him to the provisions of 2 N.T.C. \\u00a7 3753 (a) and (b) (2) (F). Tribal Council had reasonable grounds to believe these were violations of tribal law.\\nADMINISTRATIVE LEAVE OR REMOVAL\\nII. Resolution CMA-10-89 (Placing Vice Chairman Johnny R. Thompson on Administrative-Leave with Pay until he is cleared of Allegations of wrongdoing; Appointing an Interim Chairman and Interim Vice Chairman of the Navajo Tribal Council) placed Johnny R. Thompson on administrative leave with pay and did not remove him from office.\\nA. Navajo Nation Exhibit 2, Resolution CMA-10-89: Placing Vice Chairman Johnny R. Thompson on Administrative Leave with Pay\\n1. Whereas Clauses 2-10\\n(2) By resolution CF-4-89, the Navajo Tribal Council placed Chairman Peter MacDonald, Sr., on paid administrative leave; and\\n(3) In spite of Resolution CF-4-89, Vice Chairman Johnny R. Thompson is unwilling and has failed to carry out the duties and obligations of the Office of the Chairman and failed to promote and preserve the interest of the Navajo Nation as expressed by the Navajo Tribal Council; and\\n(4) In spite of offers by the Navajo Tribal Council to Johnny R. Thompson to take command as Acting Chairman, he has indicated that he will be subject to the influence of Peter MacDonald, Sr., in the exercise of the authority of the office defeating the purpose of Resolution CF-4-89; and\\n(5) Vice Chairman Johnny R. Thompson himself is implicated by. allegations that the MacDonald/Thompson candidacy filed fraudulent campaign contribution and expense reports with the Navajo Election Committee and accepted campaign contributions from non-Navajos, which are grounds for disqualification from office; and\\n(6) The Hawkins Report was delayed from the Navajo Tribal Council by the Vice Chairman and the Advisory Committee of the Navajo Tribal Council when they were under a duty to forward the position that tribal officials were exonerated; and\\n(7) It is inevitable that Vice Chairman Thompson will have to devote substantial time to defending himself against these allegations; and\\n(8) The allegations made against Chairman MacDonald and Vice Chairman Thompson need to be investigated by appropriate entities of the Navajo Nation; and\\n(9) Loyalty to the Navajo Nation and leadership integrity and credibility are essential to execution of duties and responsibilities of the Office of the Chairman and Vice Chairman; and\\n(10) The Navajo Tribal Council, in the interest of preserving and protecting the sovereignty of the Navajo Nation, has inherent authority to declare that the Chairman or Vice Chairman of the Navajo Nation is unable to fully and diligently carry out the duties and obligations of-their offices, and to appoint an Interim Chairman and Interim Vice Chairman until the Chairman and Vice Chairman can establish their fitness to lead the Navajo Nation.\\n2. Resolved clauses 1-2:\\n(1) The Navajo Tribal Council hereby declares that Vice Chairman Johnny R. Thompson is unable to fully and diligently carry out the duties and obligations of his office.\\n(2) The Navajo Tribal Council further places Vice Chairman Johnny R. Thompson on leave with pay until allegations of wrongdoing against him are cleared and the Navajo Tribal Council is satisfied that he has the ability to lead.\\n3. Resolved Clauses 5-6:\\n(5) The Navajo Tribal Council directs that this resolution shall become effective immdiately upon passage, and further, no part of this resolution shall be amended or rescinded except by majority vote of the full membership of the Navajo Tribal Council.\\n(6) The Navajo Tribal Council further withdraws all legislative and executive authority vested by Tribal law in Vice Chairman Johnny R. Thompson.\\nB. Navajo Nation Exhibit 1, Tr. 2/14/89-3/10/89 (Tribal Council delegates' discussion)\\nC. Defendants presented no evidence on the issue of whether Resolution CMA-10-89 was administrative leave or removal.\\nResolution CMA-10-89 by its terms meets all the requirements for administrative leave as required by the Navajo Nation Supreme Court. Unusual circumstances required the leave. Tribal Council found that leave was in the best interest of the Navajo Nation. The leave is to be ended when the allegations against the Vice Chairman are resolved and Tribal Council is satisfied that he can resume his duties. At that time, he may return to his duties. Finally, being on leave with pay is inconsistent with being removed, which would preclude monetary benefits.\\nPROPER LEGISLATIVE PROCEDURE.\\nHI. The basic protections required by the Supreme Court were afforded to Johnny R. Thompson.\\nA. Resolution CMA-10-89 was passed in a properly convened session of the Navajo Tribal Council at which a quorum was present.\\n1. Navajo Nation Exhibit 1, Tr. 3/10/89, p. 1: The meeting was called to order by Chairman Pro Tem Marshall Plummer at 11:45 A.M., at the Navajo Education Center, Window Rook, Navajo Nation (Arizona) with a quorum of 46 Council Delegates present.\\n2. Defendants presented no evidence on the issue of whether Tribal Council was properly convened.\\nThe Court has already addressed whether there was a properly convened session of Tribal Council. There was a quorum present on March 10, 1989.\\nB. There was a properly adopted agenda.\\nThe Court has already addressed this question and found that the session of Tribal Council which convened on February 14, 1989, properly adopted an agenda.\\nC. Resolution CMA-10-89 passed by a majority vote.\\n1. 2 N.T.C. \\u00a7 172 Quorum\\n(b) No resolution or motion of the Navajo Tribal Council shall be passed or otherwise acted upon unless a quorum is present. When a quorum is present, any motion or resolution shall be passed if it receives a majority of all votes cast, irregardless of how many members actually vote and how many abstain, unless a larger proportion than a simple majority has been properly stipulated in advance.\\n2. Navajo Nation Exhibit 1, Tr. 3/10/89, p. 1:\\nThe meeting was called to order by Chairman Pro Tern Marshall Plummer at 11:45 A.M., at the Navajo Education Center, Window Rock, Navajo Nation (Arizona) with a quorum of 46 Council Delegates present.\\n3. Navajo Nation Exhibit 1, Tr. 3/10/89, p. 17\\n4. Navajo Nation Exhibit 2, Resolution CMA-10-89: Placing Vice Chairman Johnny R. Thompson on Administrative Leave with Pay until He is Cleared of Allegations of Wrongdoing; Appointing an Interim Chairman and Interim Vice Chairman of the Navajo Tribal Council. Certification showing 37 in favor and 2 opposed, and 6 abstaining.\\nResolution CMA-10-89 was passed when a quorum of Tribal Council delegates was present. The resolution passed by 37 in favor and 2 opposed. This was a majority of those voting. At trial, there were some statements by counsel for the defendants that a quorum had not been present. Defendants, however, presented no evidence on the issue of a quorum. The Tribal Council minutes state that a quorum was present. In the absence of evidence to the contrary, the Court finds a quorum was present.\\nBILL OF ATTAINDER\\nD. Resolution CMA-10-89 was not a bill of attainder.\\n1. Navajo Nation Exhibit 2, Resolution CMA-10-89\\n2. Navajo Nation Exhibit 1, Tr. 2/14/89-3/10/89 (Tribal Council delegates' discussion)\\n3. Defendants presented no evidence on the issue of bill of attainder.\\nThe Court has discussed bills of attainder above. Although Resolution CMA-10-89 specifically refers to Johnny R. Thompson, the Court cannot find that there was punishment under the tests, historical, functional, and motivational, as set out in Nixon, supra, adopted by the Navajo Nation Supreme Court.\\nThe same reasoning that applied to Resolution CF-4-89 applies to Resolution CMA-10-89.\\nThere is no indication of an intent to punish Vice Chairman Thompson. There was a three week time period between the passage of Resolution CF-4-89 and CMA-10-89. This fact, coupled with the Tribal Council minutes and Resolution CMA-10-89, convinces the Court that the Vice Chairman was observed and evaluated separate and independent from Chairman MacDonald and that this observation and evaluation led Tribal Council to the conclusion that public interest would be served by placing the Vice Chairman on administrative leave.\\nThe Court has already set out two of the fundamental presumptions to which Tribal Council and any legislative body are entitled: the presumption that legislative acts are valid, and the presumption that the legislature acts from proper motives which include the best interests of the people.\\nIt is clear from the exhibits that the Vice Chairman did not feel bound by the decision of the majority of the governing body. Contrary to the most fundamental right of a legislative body to in fact be the legislative body, the Vice Chairman took actions in conflict with Tribal Council resolutions and the Navajo Tribal Code.\\nWhatever the interpretations and understandings upon which the Vice Chairman acted, his actions between February 17,1989 and March 10,1989, are consistent with a pattern of ignoring Tribal Council and, ultimately, tribal law. The Court is specifically referring to the failure to file campaign and disclosure statements and the failure to convey to Tribal Council the contents of the Hawkins Report.\\nTribal Council, whose duty is to provide for the health, safety and welfare of the Navajo Nation, cannot fulfill its duty when the individual to whom Tribal Council must look to for administration of its laws indicates that he will pick and choose which acts of Tribal Council he will honor. When this happens a non-punitive legislative purpose is clearly served and the public interest is furthered when the situation is resolved.\\nDEFENDANTS OTHER THAN MACDONALD AND THOMPSON\\nThere were 24 defendants other than MacDonald and Thompson named in the original complaint. At the time of trial on May 2, 1989, 15 of those defendants had been dismissed. The defendants remaining in the case are Howard Bitsuie, Erwin \\\"Bo\\\" Bowman, Patricia Damon, Herman Light, William Morgan, Richie Nez, Robert Shorty, Kee Ike Yazzie, and Carol Retasket.\\nThomas J. Hynes filed an answer for MacDonald and the other defendants. Daniel Deschinny filed a separate answer and counterclaim on behalf of Johnny R. Thompson. The counterclaim was dismissed.\\nAt trial, Defendant Carol Retasket indicated she was representing herself but filed no separate answer.\\nAll defendants other than MacDonald and Thompson chose to rely solely on the issue of the validity of resolutions CF-4-89 and CMA-10-89 and presented no individual defenses. They are heretofore bound by the Court's decision on the issues regarding MacDonald and Thompson.\\nSOVEREIGN IMMUNITY\\nOn or about March 24, 1989, Defendants filed a Motion to Dismiss on the grounds of sovereign immunity. At the hearing on the preliminary injunction on April 18, 1989, counsel for Defendants, on the record, informed this Court that the Supreme Court had disposed of the question of whether the Navajo Nation Sovereign Immunity Act was a bar to suit. Counsel then stipulated to the preliminary injunction and trial was set for May 2, 1989.\\nSince this Court finds the Navajo Tribal Council resolutions CF-43-89 and CMA-10-89 as valid, the Defendants have no Official Capacity or duties protected by the Navajo Sovereign Immunity Act.\\nORDER\\nBased upon the foregoing Findings of Fact and Opinion, the Court hereby Orders that:\\n(a) Resolutions CF-4-89 and CMA-10-89 are lawful and enforceable Resolutions of the Navajo Tribal Council which divested Chairman MacDonald and Vice Chairman Thompson of their legislative and executive powers; and\\n(b) The termination of employment of each of the other Defendants was lawful and each Defendant thereafter had no authority related to his/her former position; and\\n(c) Based on the above declaration of the validity of the leave resolutions and employment terminations, and the Court's acceptance of the parties' stipulation on the record that Defendants MacDonald and Thompson do not recognize the validity of the resolutions placing them on leave and have continually exercised purported official authority at all times following the effective dates of their leave resolutions, Chairman Peter MacDonald, Sr. and Vice Chairman Johnny R. Thompson and other Defendants are hereby permanently enjoined from attempting to assert official authority which has been declared withdrawn.\\nThe COURT further ORDERS that the Defendants are permanently enjoined as follows:\\nA. Each Defendant is restrained from attempting to exercise any official powers and duties as an official employee, or agent of the Navajo Nation, unless further authorized by this Court; and\\nB. Each Defendant is restrained from entering or remaining in Tribal office for the purposes of conducting business as employee or official of the Navajo Tribal Government except as provided in this order; and\\nC. Each Defendant is restrained from removing or destroying any Tribal records and from using any Tribal property including any credit cards, telephones, airplanes, vehicles, xerox machines, computers, office equipment, offices, and from issuing checks from Tribal accounts; unless further ordered by this Court; and\\nD. Each Defendant is enjoined from issuing or approving any orders, contracts, travel authorizations, requests for payments, purchase order, and travel reimbursements; unless further authorized by this Court; and\\nE. Each Defendant is enjoined from prohibiting or obstructing the duly appointed officials of the Navajo Nation and their employees from entering into Tribal buildings; and\\nF. Each Defendant is restrained from interfering with the duties of duly appointed officials of the Navajo Nation and their employees.\\nFor purposes of this Order, wherever the term \\\"Defendant\\\" is used it shall be deemed to apply to any officer, agent, servant, employee, counsel, or any person acting in concert with them or on his or her behalf. Furthermore, other than Chairman Peter MacDonald, Sr. and Vice Chairman Johnny R. Thompson, nothing in this Order should be construed as prohibiting any Defendant to reapply for his or her former position or to apply for any other Tribal office. Such as, the prohibitions of this Permanent Injunction will not apply to any such bona fide reapplication and rehiring of the Defendant by the Navajo Nation.\\nThe purported official acts of Chairman MacDonald and Vice Chairman Thompson taken after they were placed on administrative leave are declared null and void.\\nThe Navajo Department of Law Enforcement is hereby ordered to enforce and execute the terms of this PERMANENT INJUCTION.\\nA security bond is not required pursuant to Rule 18 of the Navajo Rules of Civil Procedure because the Navajo Nation is a plaintiff in this action.\\nThis Permanent Injunction and Declaratory Judgment is effective at the hour of issuance and shall continue in effect until further order of this Court.\\nThe term of the stipulated Preliminary Injunction entered by the parties on April 19, 1989 shall remain in effect until further order of this Court.\\nOrdered this 17th day of May, 1989, at the hour of 10:25 a.m.\\n. Navajo Nation exhibit 3, transcript of the Senate Select Committee Hearings of February 2, 6 and 7,1989 (hereafter \\\"Exhibit 3\\\"), 2/2/89 at 28-29, 37-42, 52, 69-72, 78-79, 90-93.\\n. Exhibit 3, 2/7/89 at 44-45, 51-53, 55-61, 66-67, 69, 124-125.\\n. Exhibit 3,2/2/89 at 32-33; 2/6/89 at 99-102,106-107,113; and 2/7/89 at 75-79,93-102,124-125.\\n. Exhibit 3, 2/2/89 at 28-29 (including Paddock exhibit list of payments and gratuities to MacDonald), 68-69.\\n. Navajo Nation Exhibit 4, Candidate's Campaign Expense Statement for Peter MacDonald, 11/20/86.\\n. Exhibit 4.\\n. Exhibit 4; and Exhibit 3, 2/2/89 at 28-29 (see also Paddock exhibit list of payments and gratuities to MacDonald, and testimony of Gloria Dennison).\\n. Navajo Nation Exhibit 1, Minutes of the 1989 Winter Session of the Navajo Tribal Council, 1 N.T.C. 2/14/89.\\n. Id. at 57.\\n. Exhibit 1, 2/15/89 at 1-2.\\n. Exhibit 1, 30 N.T.C. 2/16/89.\\n. Exhibit 2, Resolution CF-3-89, 2/17/89.\\n. Exhibit 2, Resolution CF-4-89, 2/17/89; Exhibit 1, 2/17/89 at 33.\\n. Exhibit 1, 2/17/89 at 25; Exhibit 2, CF-4-89 at para. 3.\\n. Exhibit 2, Resolution CMA-6-89; Exhibit 1, 2 N.T.C. 3/1/89.\\n. Exhibit 1, 4 N.T.C. 3/1/89; Exhibit 2, Resolution CMA-6-89 at para. 15.\\n. Exhibit 1, 17 N.T.C. 3/10/89; Exhibit 2, CMA-10-89.\\n. Exhibit 2, CMA-10-89 at para. 3.\\n. Id. at para. 4.\\n. Id. at para. 5.\\n. Statements made by Daniel Deschinny, Sr., as Counsel for Defendant Thompson in opening remarks and in motion for Directed Verdict; Navajo Nation Exhibit 5, Memorandum to Michael R Upshaw, 2/21/89; Navajo Nation Exhibit 5, Memorandum to Anthony P. Lincoln, 3/7/89; Navajo Nation Exhibit 7, letter to Eric N. Dahlstrom, 3/9/89; Navajo Nation Exhibit 8, Memorandum to Richie Nez, 3/21/89; Navajo Nation Exhibit 9, Memorandum to Carol Retasket, 3/21/89; Navajo Nation Exhibit 10, Memorandum to Eric N. Dahlstrom, 2/17/89; Navajo Nation on Council Exhibit 11, Memorandum/Executive Order to Wilbur Kellogg, 3/10/89; Navajo Nation Exhibit 12, Memorandum/Executive Order to Wilbur Kellogg on Chairman and Vice-Chairman, 3/10/89; Navajo Nation Exhibit 13, Memorandum to James Henderson, 3/10/89; Navajo Nation Exhibit 14, Memoranda signed by Defendant MacDonald as Chairman; Adverse inference drawn from Defendant MacDonald's failure to answer question on point.\\n. Exhibit 5, see n. 22.\\n. Exhibit 6, see n. 22.\\n. Exhibit 7, see n. 22.\\n. Exhibits 11 and 12, see n. 22.\\n. Exhibit 13, see n. 22.\\n. Exhibit 8, see n. 22.\\n. Exhibit 9, see n. 22.\\n. Exhibit 10, see n. 22.\\n. Exhibits 10, and 14.\\n. Testimony of Defendant Thompson, 5/3/89; Exhibit 2, Resolution CMA-10-89.\\n. All evidence submitted and judicial notice.\"}"

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+"{\"id\": \"530253\", \"name\": \"Johnny R. Thompson, Appellant, v. The Navajo Nation, et al., Appellees\", \"name_abbreviation\": \"Thompson v. Navajo Nation\", \"decision_date\": \"1990-05-25\", \"docket_number\": \"No. A-CV-19-89\", \"first_page\": 181, \"last_page\": 185, \"citations\": \"6 Navajo Rptr. 181\", \"volume\": \"6\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T21:44:15.784960+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before TSO, Chief Justice, BLUEHOUSE and AUSTIN, Associate Justices.\", \"parties\": \"Johnny R. Thompson, Appellant, v. The Navajo Nation, et al., Appellees.\", \"head_matter\": \"No. A-CV-19-89\\nSupreme Court of the Navajo Nation\\nJohnny R. Thompson, Appellant, v. The Navajo Nation, et al., Appellees.\\nDecided May 25, 1990\\nBefore TSO, Chief Justice, BLUEHOUSE and AUSTIN, Associate Justices.\\nDaniel Deschinny Sr., Esq., Window Rock, Arizona, for the Appellant; and Stanley M. Pollack, Esq., and David P. Frank, Esq., Navajo Nation Department of Justice, Window Rock, Arizona, for the Appellees.\", \"word_count\": \"2343\", \"char_count\": \"14448\", \"text\": \"OPINION\\nOpinion delivered by\\nTso, Chief Justice.\\nAppellant Johnny R. Thompson, Vice Chairman of the Navajo Tribal Council, appeals the decision of the Window Rock District Court dated May 17, 1989. In its decision the district court held that Navajo Tribal Council Resolution CMA-10-89, which placed appellant on paid administrative leave, was a valid, lawful, and enforceable Resolution of the Navajo Tribal Council. We affirm the district court decision.\\nI\\nOn March 10, 1989, the Navajo Tribal Council passed Resolution CMA-10-89 during its session held at the Navajo Education Center in Window Rock, Navajo Nation (Arizona). The Resolution, as certified, states that the Council met in a properly convened session with a quorum present. The Council passed the Resolution with a majority of the quorum voting for its passage.\\nResolution CMA-10-89 divested appellant of his executive and legislative authorities and it placed him on paid administrative leave for the following reasons: (1) After Chairman Peter MacDonald Sr. was placed on paid administrative leave by the Council, appellant failed to take command as acting chairman. Appellant was unwilling, and failed, to carry out the duties and obligations of the office of chairman; (2) Appellant indicated that he will be subject to the influence of suspended Chairman Peter MacDonald Sr.; (3) Appellant is implicated by allegations that the MacDonald/Thompson candidacy filed fraudulent campaign contribution and expense reports and accepted campaign contributions from non-Navajos; (4) Appellant and the Advisory Committee delayed forward ing the Hawkins Report to the Navajo Tribal Council when they were under a duty to do so; and (5) Appellant will have to devote substantial time to defending himself against allegations of wrongdoing. Despite being placed on paid administrative leave, appellant continued to exercise the powers of the office of vice chairman.\\nOn March 22, 1989, the Navajo Nation Department of Justice, on behalf of the Navajo Nation (Nation), filed this action against Chairman MacDonald, the appellant and others by seeking injunctive and declaratory relief. The part of the suit against appellant sought to enforce Resolution CMA-10-89 by enjoining appellant from exercising the powers of the Office of Vice-Chairman of the Navajo Tribal Council. The court issued a temporary restraining order. Appellant then applied to this Court for a writ of mandamus to prohibit the district court from exercising its jurisdiction. We denied the application for the writ. MacDonald Sr. v. Honorable Robert Yazzie, 6 Nav. R. 95 (1989).\\nWhile the application for the writ was pending, Chairman MacDonald purported to terminate the district judge sitting on this case and hand picked the judge's successor. This action threw into question the authority of the district judge to sit on this case at trial. Consequently, the district court certified four questions to this Court. We answered all four questions including the one relevant to this appeal: we held that the Navajo Tribal Council has authority to place a chairman and a vice chairman on paid administrative leave if certain conditions are met. In re Certified Questions II, Navajo Nation v. MacDonald Sr., 6 Nav. R. 105 (1989). This Court then instructed the district court to determine whether Resolution CMA-10-89 was properly adopted and whether it violated the prohibition against bills of attainder.\\nOn April 18,1989, the parties agreed to have a preliminary injunction entered. On May 2-4, 1989, the district court held a bifurcated hearing on, among others, two issues relevant to this case: 1) Whether Resolution CMA-10-89 was valid; and 2) Whether the appellant violated the terms of Resolution CMA-10-89.\\nAt trial the Nation introduced the following evidence: 1) A certified copy of Resolution CMA-10-89. The certification stated that it was passed at a duly called meeting with a quorum of the Council present and a majority of the delegates present voted for its passage; 2) Minutes of the March 10, 1989 Navajo Tribal Council session indicating that the session was held at the Navajo Education Center. The minutes also showed that the vote on the Resolution was 37 in favor, 2 opposed and 6 abstaining. The minutes further showed a quorum of 46 council delegates present when the session was called to order by the presiding chairman.\\nAt the close of the Nation's case, appellant moved for a directed verdict which was denied. Appellant then rested his case without presenting any witnesses or evidence. Specifically, appellant offered no evidence that a quorum did not exist. Appellant even stipulated that he did not want to present any evidence on the second phase of the bifurcated hearing concerning the issue of whether appellant violated the terms of Navajo Tribal Council Resolution CMA-10-89.\\nOn May 17, 1989, the district court decided that Resolution CMA-10-89 was valid, and Resolution CMA-10-89 was not a bill of attainder. Consequently, a permanent injunction and a declaratory judgment were entered against appellant.\\nAppellant filed this appeal on June 16,1989. On appeal the appellant framed the issues as follows: 1) Whether the lower court erred in denying appellant's motion for a directed verdict at the close of the Navajo Nation's case-in-chief; 2) Whether a bill of attainder is present, adducible from the records of the lower court; 3) Whether the lower court erred in its evidentiary rulings; and 4) Whether the lower court failed to properly ascertain Navajo public policy and applicable federal law.\\nII\\nIn our decision answering the certified questions, we held that the Navajo Tribal Council has authority to place the vice-chairman on administrative leave with pay if certain conditions are met. We directed the district court on remand to decide whether Resolution CMA-10-89, placing appellant on administrative leave with pay, had been properly adopted and whether Resolution CMA-10-89 violated the prohibition against bills of attainder. In re Certified Questions II, id.\\nThe Navajo courts have the power to determine the validity of resolutions passed by the Navajo Tribal Council. Halona v. MacDonald, 1 Nav. R. 189 (1978). The core of this case involves the validity of Resolution CMA-10-89. The Nation filed this suit seeking to enforce the Resolution. In defense, the appellant raised the issue of the validity of the Resolution. We also directed the district court to determine whether the Resolution was valid by looking at the manner in which it was adopted and to test it against the law used to determine whether a legislative act is a bill of attainder. In re Certified Questions II, 6 Nav. R. 105.\\nThis Court has not had an opportunity, previous to this case, to pronounce a standard to be used in determining the validity of a Council resolution. That does not mean that the lower courts were without guidelines. In Benally v. Gorman, 5 Nav. R. 273 (Window Rock Dist. Ct. 1987), the Window Rock District Court pronounced a standard, which we agree is the proper standard, to be used to test the validity of legislative acts. The court in Benally said as follows: \\\"When a court is faced with reviewing any legislative action, that review must be conducted under certain principles. The main principle of judicial review is the presumption that the legislative act is proper and legal.\\\" 5 Nav. R. at 275. This same standard was first articulated by the same district court in an earlier decision. In Damon v. MacDonald, 4 Nav. R. 138, 140 (Window Rock Dist. Ct. 1983), the court said as follows: \\\"This Court follows the presumption of validity that attaches to official acts, particularly those of the legislature....\\\"\\nThe reason behind this presumption is the belief that public officials normally perform the duties of their offices in a proper manner. Likewise, the Council in exercising its legislative function is presumed to have done its job properly, faithfully, and within the bounds of law. The Council, as the people's servant, is presumed to act in the best interests of the people. For these reasons, we now pronounce that resolutions of the Navajo Tribal Council are presumed to be valid and the party seeking to challenge the validity of any Council resolution has the burden of rebutting that presumption with clear evidence to the contrary.\\nThe presumption that a Council resolution is valid imposes upon the party against whom it is invoked the duty to offer clear evidence to rebut the presumption. The evidence of invalidity must be clear evidence, otherwise Council resolutions could be overturned by our courts based simply upon surmise or speculation. See Damon, 4 Nav. R. at 140. In the absence of such clear evidence, the court will have no choice but to render a ruling consistent with the presumption. In this case appellant alleged that Resolution CMA-10-89 is invalid. Thus, appellant had the burden of presenting clear evidence to the district court to rebut the presumption that the Resolution is valid.\\nThis Court has no difficulty in concluding that the appellant failed to come forward with clear evidence to show the invalidity of Resolution CMA-10-89. The appellant simply offered no evidence whatsoever. The Nation introduced its evidence which included a certified copy of Resolution CMA-10-89 and the minutes of the March 10, 1989 Council session. The Nation then rested. Appellant then moved for a directed verdict, which was denied, and then rested without presenting any evidence. Under these facts the district court had no choice but to rule in accordance with the presumption and hold that Resolution CMA-10-89 is valid.\\nThe appellant made no effort to satisfy his burden and under these circumstances we conclude that the presumption of validity becomes conclusive. Consequently, we need not address any of the issues presented by the appellant. Nonetheless, we will address two points heavily relied upon by appellant which he claims shows \\\"clear evidence of irregularity\\\" in the passage of Resolution CMA-10-89.\\nThe appellant first argues that at the time the council delegates voted on Resolution CMA-10-89, they did not have a quorum. Appellant relies upon the minutes of the March 10, 1989 Council session which show that when the first vote was taken on proposed Resolution CMA-10-89, only 43 delegates voted. Another vote was immediately taken and this time 45 delegates voted on the Resolution. The second vote is the vote that made Resolution CMA-10-89 official; not the first vote.\\nThe appellant's argument has no merit. First, we reviewed the entire minutes of the March 10, 1989 Council session and found that when the session to conduct business was called to order by the presiding chairman, a quorum, comprised of 46 delegates, was present. Second, the resolution that officially became Resolution CMA-10-89, and the one that appellant claims is invalid, shows on its face that 45 delegates voted for it. The first vote did not produce a resolution. We conclude, as did the district court, that the appellant did not present clear evidence by way of witnesses or otherwise to show that a quorum was not present. In the absence of clear evidence to the contrary, the presumption that a quorum of the Council was present controls.\\nThe appellant also argues that Resolution CMA-10-89 is invalid because the Resolution was passed while the delegates were illegally convened at the Navajo Education Center. The appellant claims that the law requires all Council sessions to be held at the Navajo Tribal Council Chambers. The appellant relies upon 2 N.T.C. \\u00a7 161 (1972), which is as follows:\\nAll regularly scheduled or special meetings of the Navajo Tribal Council shall be held at the Navajo Tribal Council Chambers located at Window Rock, Arizona with the following exceptions:\\n(1) If the Chairman of the Navajo Tribal Council shall declare by written statement that the Chambers at Window Rock are unsuitable for meeting, whether because of fire, physical damage, remodeling or other cause, the Chairman shall designate an alternate meeting place in or near Window Rock, and he shall give reasonable notice to all Council delegates of such fact.\\n(2) A majority of all Council delegates may agree to hold a meeting in some location other than the Chambers at Window Rock. Such agreement may be by written petition or by motion at any regular or special session of the Navajo Tribal Council.\\nAgain the presumption of validity controls the decision on appellant's second point. Appellant did not present clear evidence to show that the Chairman of the Navajo Tribal Council did not designate an alternate meeting place pursuant to section 161(1) above. The appellant further did not present clear evidence to show that a majority of the council delegates did not petition or pass a motion to meet at a place other than the Council Chambers pursuant to section 161(2). The appellant simply relies on speculation.\\nThe appellant had the burden to present clear evidence to rebut the presumption of validity of Resolution CMA-10-89 and he has chosen not to do so. Consequently, we are under no obligation to address any of the issues presented by appellant. The presumption of validity is conclusive as a matter of law. The district court did not err in denying the motion for directed verdict. The decision of the district court is affirmed in its entirety.\\n. A quorum of the Council consists \\\"of a simple majority of all voting members of the Navajo Tribal Council.\\\" 2 N.T.C. \\u00a7 172(a). \\\"When a quorum is present, any motion or resolution shall be passed if it receives a majority of all votes cast, irregardless of how many members actually vote....\\\" (emphasis added). 2 N.T.C. \\u00a7 172(b). There are currently 88 delegates on the Council and 45 dele gates make a quorum. We note that the part of section 172(b) quoted above may be construed to mean that once a quorum has been declared to commence the session, less than 45 delegates can vote on a resolution and the resolution can be valid.\"}"

navajo_nation/530262.json

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+"{\"id\": \"530262\", \"name\": \"In Re: Mary Ellis Joe's Customary Use Area, District 9, Shiprock Agency, Navajo Nation Mary Ellis Joe, C# 20,287, Petitioner, v. Melvin Willie, et al., Respondents\", \"name_abbreviation\": \"Joe v. Willie\", \"decision_date\": \"1990-09-26\", \"docket_number\": \"No. SR-CV-949-83\", \"first_page\": 545, \"last_page\": 550, \"citations\": \"6 Navajo Rptr. 545\", \"volume\": \"6\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation District Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T21:44:15.784960+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judge Leroy S. Bedonie presiding.\", \"parties\": \"In Re: Mary Ellis Joe\\u2019s Customary Use Area, District 9, Shiprock Agency, Navajo Nation Mary Ellis Joe, C# 20,287, Petitioner, v. Melvin Willie, et al., Respondents.\", \"head_matter\": \"No. SR-CV-949-83\\nDistrict Court of the Navajo Nation Judicial District of Shiprock, New Mexico\\nIn Re: Mary Ellis Joe\\u2019s Customary Use Area, District 9, Shiprock Agency, Navajo Nation Mary Ellis Joe, C# 20,287, Petitioner, v. Melvin Willie, et al., Respondents.\\nDecided September 26, 1990\\nJudge Leroy S. Bedonie presiding.\", \"word_count\": \"2635\", \"char_count\": \"15764\", \"text\": \"FINDINGS OF FACT; CONCLUSIONS OF LAW; AND JUDGMENT\\nDECISION ON REMAND\\nThe Navajo Nation Supreme Court remanded this case to adjudicate and determine the matter de novo. The Court having heard testimony presented, receiving evidence and being sufficiently advised makes its findings as follows:\\nFINDINGS OF FACT\\n1. The Court has proper subject matter and personal jurisdiction in this cause of action pursuant to 7 NTC Sec. 253(2).\\n2. On March 9, 1982, Counsel for Mary Ellis Joe, by letter, notified the District Nine (09) Grazing Committee of competing claims to grazing land claimed by Petitioner as her customary use area and requested notice to all parties claiming an interest and that the matter be heard by the committee. On June 29, 1982, the Petitioner was notified that the District Grazing Committee had reviewed Petitioner's claim but no decision was reached.\\n3 On November 10,1983, the Petitioner filed a quiet title suit in the Shiprock District Court citing the grazing committee's failure to reach a decision. Parties (defendants) claiming interests in the disputed land filed an answer to the petition on December 9,1983. On April 4,1984, the Court referred this case to the District #9 Grazing Committee but it decided nothing; therefore, on February 15, 1985, the Court again referred the case to the Resources Committee and on March 27, 1987, this Committee (Resources) entered its decision holding that the Petitioner had \\\"no claim to any area beyond the area authorized by her grazing permit.\\\"\\n4. The Petitioner requested judicial review of the final Resources Committee decision, and on May 29, 1989, the District Court decided not to review a decision of the Resources Committee on grounds it had no jurisdiction. The Petitioner then filed an appeal with the Supreme Court challenging this Court's decision, and on the 22nd day of March 1990, reversed the decision of the District Court and remanded this case for adjudication and to determine the matter de novo.\\n5. The record shows that the Petitioner, Mary Ellis Joe, is seeking approximately 27,000 acres or 42 square miles. Petitioner currently uses an undisputed area, designated as .0216, within the area claimed by her. The BIA has issued a total of 4 different permits within .0216, for a total of 304 sheep units. Area .0216 is slightly less than one half of the 27,000 acres she is claiming which amounts to roughly 12,000 acres (BIA Land Operations has not conducted a survey on Petitioner's use area .0216). Mary Ellis Joe owns Grazing Permit No. 9-120 for 83 sheep units yearlong within Sweetwater Chapter of Land Management District 9. Mary Ellis Joe testified at trial that she has 80 sheep, 70 goats, 20 cows and 6-7 horses.\\n6. Mary Ellis Joe's claimed use overlaps into other areas claimed by common heirs. While Respondent Grace Oldman and Mary Ellis Joe share a common father, Mary Ellis Joe also shares a grandfather with Hosteen Bluff City's children, who were alleged to be newcomers at trial. That is, Kitseally's old wife was the daughter of Old Wagon and his first wife. Whereas, Hosteen Bluff City, Jack Banana, Jean Morris and Old Wagon's daughter were children of Old Wagon and his second wife. Clearly, if one goes back far enough most of the respondents are related and technically are not outsiders. Mary Ellis Joe wishes to claim property which might have been grazed at any time during the life of Kitseally or his ancestors.\\n7. Respondent Grace Oldman testified that she is a daughter of Kitseally's new wife and that she has a right to use the land north of Toh Atin Mesa. She was born and raised on the land to the north of Toh Atin Mesa and has lived there continuously. Mrs. Oldman and her husband, Jake Oldman, own two separate grazing permits in two areas designated .0203 (41 sheep units) and .0202 (63 sheep units) north and northwest of .0216. Grace and Jake Oldman utilize a third permit owned by their son, Casey Oldman, which allows for 78 sheep units in the .0202 area. The grazing permits combined allow for 182 sheep units. Grace testified at trial that she takes care of 52 sheep, 98 goats, 12 cows and 1 horse. Jim Oldman testified that he has 33 sheep, 3 cows, 2 horses and 10 goats.\\nCONCLUSIONS OF LAW\\n1. A grazing permit gives one the right to use the land for grazing, however, \\\"no person is entitled to more range area than needed to support the number of livestock allowed on his or her grazing permit\\\" as set forth in the 1957 Navajo Reservation Grazing Handbook at page 14. The primary purpose of grazing permits is to control the number of livestock to protect and preserve the land. Mary Ellis Joe testified that she has a grazing permit which allows her to have 83 sheep units. However, according to her testimony, she maintains 150 goats and sheep, 20 cows and 6-7 horses. One cow or one horse is equal to 5 sheep units; therefore, 27 cows and horses would be equivalent to 135 sheep units. Mary Ellis Joe currently grazes 285 sheep units on an 83 sheep unit permit. Note, under the current poor grazing conditions, she alone needs 17,100 acres to support 285 sheep units. At trial, Mary Ellis Joe alleged that the respondents were responsible for depletion of grass. But, Mary Ellis Joe is also contributing to the poor conditions especially in light of Mr. Randy D. Cornett's testimony that the number of livestock is down played by the owners. To exacerbate the situation, there are three other permittees who are allowed 221 sheep units. It is not unreasonable to conclude that these other valid permittees within .0216 are also grazing beyond their limits and thus contributing to the poor grazing conditions in violation of the Navajo land policy.\\n2. Initially, grazing permits were issued to persons who had livestock and could identify customary use to a specified area. Customary use is a Navajo concept that defines an individual Navajo's prescribed boundary for the use and occupancy of land to an area traditionally inhabited by his/her ancestors. In The Matter Of The Estate Of: Charley Nez Wauneka, Sr., 5 Nav. R. 79, 81 (1987). Grazing permits were also issued to those people who claimed a specific area of land known as \\\"claimed use area.\\\"\\n3. A grazing permit is one of the most important items of property a Navajo can own. Estate of Navajo Joe, 4 Nav. R. 99 (1983). Grazing permits are extremely valuable property due to the limited land base, and land use rights are embodied by the permit.\\n4. Grazing permits changed the nature of customary use in some cases, because Navajo people outside the ancestral pool can obtain grazing privilege by gift or purchase. The Navajo Supreme Court held that a grazing permit is the functional equivalent of a deed and is therefore an instrument which transfers real property. In the Matter of the Estate of Joe Dee Nelson, 1 Nav. R. 162 (1977). Characterizing grazing permits as deeds allows for conveyance of grazing permits by gift, purchase or inheritance. Thus, those Navajos who follow the tradition of customary use to a particular area based on ancestral use will necessarily clash with \\\"outsiders\\\" who have bought or received a permit by gift.\\n5. Grazing permits, from inception, have been controversial and fraught with conflict. The Court will not address the issue of whether the Bureau of Indian Affairs and district grazing committees are consistent with each other nor will it concern itself with other administrative problems. The Court will, however, adhere to the Navajo land policy adopted by the Navajo Supreme Court. The Court recognizes that land is a resource and the increasing pressure on the land threatens its viability. Hence, the primary goal of the Navajo land policy is to keep the land economically viable.\\nThe Court is faced with the extremely difficult and emotional issue of land disputes. Land to the Navajo people is life which embodies the concept of spiri tual, mental, physical and emotional well being. Navajo thinking and values accord land with survival and sustenance. Since the Long Walk, Navajos have maintained a subsistence life-style based on livestock production, which livestock ownership among the Navajo is a symbol of wealth, prestige, and stability.\\nSince land plays a central and sacred role in the Navajo culture, it follows that the Navajo will fight long and hard for their land. Many of the land disputes arising on the Navajo Nation are between common relatives and between siblings. The rapid population growth of the Navajos, along with a strong cultural tradition of having land with livestock and a home where they grew up, inevitably causes land disputes. The Navajo population has increased from approximately 9,000 (upon return from Ft. Sumner) to 169,157 in 1989. See Chapter Images: 1989, General Facts on Navajo Chapters, May 1990, Larry Rodgers, Division of Community Development, Window Rock, Arizona.\\nEvidence of the spiritual and mental tie to livestock ownership clearly surfaced when the government forced Navajos to reduce their stock by 64 to 80 percent during the late 1930's and early 1940's. Navajos were devastated by the massive killing and irreverent conduct by government officials. See Navajo Livestock Reduction: A National Disgrace, Navajo Community College Press, 1974. The purported purpose of the stock reduction was to restore the land which had been overgrazed by an over abundance of livestock. This era initiated a reservation-wide grazing policy which gave birth to the grazing permit in 1937. The majority of Navajos reacted strongly against the regulation of grazing and grazing permits, but it was eventually accepted. The maximum amount of permissible sheep units an individual Navajo could receive was set at 350 to be authorized by the Bureau of Indian Affairs.\\nUnfortunately, when dealing with the ancestral use of the land, we must look to the family tree which gets ever wider with more and more people, who all claim to have use rights by virtue of common ancestors. This is exactly what we are faced with in this case. Petitioner Mary Ellis Joe is the daughter of Hosteen ICitseally's old wife and Respondent Grace Oldman is the daughter of Hosteen Kitseally's new wife. When Hosteen Kitseally separated from his old wife and began to live exclusively with his new wife, he gave his old wife the majority of the sheep and the land to her right as she faced east on top of Toh Atin Mesa. Hosteen Kitseally, with his new wife, moved to the North of Toh Atin Mesa and began to build the herd again. When boundaries are not delineated by fences, it is possible Mary Ellis Joe may have grazed at one time or another on the land north of Toh Atin Mesa and further south and west of the .0216 area. But, when such a claim is made, we have to look to the rights of the other descendants of common ancestors in light of the Navajo land policy.\\nThe semi-desert region of Navajoland requires livestock control to protect the land from becoming a wasteland. Although the amount of stock owned by individual Navajos is much less than what it was prior to forced stock reduction fifty-five years ago, the Navajo population has almost quadrupled since the issuance of grazing permits in 1940. See Navajo Nation FAX 88: A Statistical Abstract p.2, September 1988, Division of Community Development, Window Rock, Arizona. Within Shiprock Agency District 9, the population was estimated to be 2,285 in 1940 and 4,994 in 1980 - a 118.56% increase. It is projected to increase to 6,242 by 1988. See Navajo Nation FAX, id. at p.7.\\nThe 27,000 acres claimed by Mary Ellis Joe disturbs the Court for the following reasons. The estimated land size of Sweetwater Chapter is 152,006.30 acres. Her claim amounts to over one fifth of the Sweetwater Chapter area within District 9. The estimated 1989 Sweetwater population is 1,698. See Chapter Images 1989 at p.104. To grant Mary Ellis Joe her claim of 27,000 acres would not only deny the rights of descendants who have been born and raised in the area, but it would grant Mary Ellis Joe a special privilege which is no longer practical or realistic. Almost every middle aged Navajo sheep owner can recall when their families made seasonal herds over great distances and could probably show reminisces of camps upon request. The tremendous increase in population has rendered it inequitable for any one Navajo or family to continue that lifestyle because in effect, it would force 90 percent of the remaining Navajos to forfeit their identity with the land. It's unlikely that a subsistence life-style entirely based on raising stock is possible because of the massive land base that is required to make it profitable without destroying grazing land.\\nAlthough, time has changed the extent of subsistence livestock economy of the Navajo people, stockraising today retains its traditional position. Many young educated Navajos trained in various fields have sources of income other than subsistence stockraising. Contrary to what the officials from the Bureau of Indian Affairs had hoped for forty years ago, many of these Navajos have inherited the Navajo way of thinking. They maintain ties to the land and value stockraising, even if it is just one sheep, one horse or one cow and return back to where they were raised whenever possible. The BIA believed that the spread of education would de-emphasize stockraising. See The Navajo Year Book, Report No. viii, 1951-1961. A Decade of Progress, Robert Young, Assistant to the General Superintendent; Navajo Agency, Window Rock, Arizona 1961.\\nPetitioner contends that those Navajos who reside and graze in the area she is claiming are responsible for the deterioration of grazing land. Petitioner further contends that given the poor range conditions, the 304 sheep units would require 18,240 acres. This figure is based on the testimony given by Randy D. Cornett, Supervisory Range Conservationist, Branch of Natural Resources, Shiprock Agency, Bureau of Indian Affairs. Mr. Cornett estimated that the range condition of the lands in dispute is estimated to be poor north of Toh Atin Mesa and poor to fair in the south. Mr. Cornett stated that given poor conditions, it takes 50 - 60 acres to graze one sheep unit.\\nThe purpose of the Navajo land policy is to keep Navajoland economically viable. The problem of overgrazing is widespread and each individual Navajo should take responsibility to protect our Nation from becoming a wasteland. This can be achieved by controlling the amount of livestock or giving them supplemental feed or both. This Court is not in the position to promulgate rules and regulations that may reconcile customary use claims with grazing permits. Nor is this Court responsible for the enforcement of grazing regulations. This Court suggests to the lawmaking body to create a competent administrative agency to hear and determine land disputes. That Navajo Nation administrative agency can promulgate procedures which guarantee due process and rights guaranteed by the Navajo Bill of Rights and Indian Civil Rights Act.\\nJUDGMENT\\nMary Ellis Joe will not be allowed to claim more land than could have been claimed by her mother, Kitseally's old wife. The original 1940 Bureau of Indian Affairs map of the area in dispute shows that Kitseally's old wife had a customary use area designated as .0216 as shown on Petitioner's Exhibit \\\"1.\\\" This will be the land allowed to be claimed by Mary Ellis Joe.\\nTHUS ORDERED this 24th day of September, 1990.\"}"

navajo_nation/530266.json

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+"{\"id\": \"530266\", \"name\": \"Navajo Nation, Plaintiff, v. Patrick Platero, Defendant\", \"name_abbreviation\": \"Navajo Nation v. Platero\", \"decision_date\": \"1991-12-05\", \"docket_number\": \"No. A-CR-04-91\", \"first_page\": 422, \"last_page\": 431, \"citations\": \"6 Navajo Rptr. 422\", \"volume\": \"6\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T21:44:15.784960+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before TSO, Chief Justice, BLUEHOUSE and AUSTIN, Associate Justices.\", \"parties\": \"Navajo Nation, Plaintiff, v. Patrick Platero, Defendant.\", \"head_matter\": \"No. A-CR-04-91\\nSupreme Court of the Navajo Nation\\nNavajo Nation, Plaintiff, v. Patrick Platero, Defendant.\\nDecided December 5, 1991\\nBefore TSO, Chief Justice, BLUEHOUSE and AUSTIN, Associate Justices.\\nVernon J. Roanhorse, Esq., Navajo Legal Aid and Defender Office, Window Rock, Navajo Nation (Arizona), for the defendant; and Timothy Joe, Esq., Virgil Brown, Esq., and Victor J. Clyde, Esq., Navajo Nation Prosecutor\\u2019s Office, Window Rock, Navajo Nation (Arizona), for the plaintiff.\", \"word_count\": \"4732\", \"char_count\": \"28509\", \"text\": \"OPINION\\nOpinion delivered by\\nAUSTIN, Associate Justice.\\nThe Navajo Nation filed this petition seeking to have this Court reconsider its order filed on October 15, 1991. That order reversed the judgment of conviction of Patrick Platero for the offense of battery. The reversal is based on our finding, after review of the transcript, that the trial court abused its discretion by refusing to grant Platero's motion for acquittal. We have examined the petition, the applicable parts of the transcript and record, and we find no reason to change our ruling of October 15, 1991.\\nI\\nOn March 24, 1989, the Navajo Tribal Council passed a resolution which authorized the termination of Wilbur Kellogg as Chief of the Navajo Police, and recommended the appointment of Major Franklin Morris as the Acting Chief of Police. Leonard Haskie, Interim Chairman of the Navajo Tribal Council, offered the position to Morris, but he refused it. Chairman Haskie then appointed Major George John as the police chief on April 3,1989. John immediately faced a problem - Kellogg refused to obey his termination orders, and remained in office. On April 5, 1989, John attempted to meet with Kellogg and top command officers (including Platero who was a lieutenant), but Kellogg avoided the meeting. On April 7, 1989, John again unsuccessfully attempted to inform police officers of his appointment. On April 13, 1989, John wrote a memorandum that terminated Platero from his employment as a police officer, for an incident arising from John's April 5, 1989 attempt to inform command officers of his appointment.\\nThe events crucial to this decision happened on April 14, 1989. That morning police officers from around the Navajo Nation assembled in a building called the Old Police Academy, which is at the rear of the Navajo Nation Police and Court Building in Window Rock. Simultaneously, command officers met in the main building. The police officers were preparing for further public demonstrations and a likely confrontation between supporters of suspended Chairman Peter MacDonald Sr. and those in opposition.\\nAt 10:12 a.m., on the morning of April 14, 1989, Lieutenant Daniel Hawkins delivered several employment termination notices, including Platero's, to Major George Waybenais' secretary. Hawkins said that while he usually served termination notices on officers personally, he did not do so then. He and John \\\"felt that it would be safer for myself [Hawkins] not to provoke any type of confrontation, and to leave the packet with the secretary of the Officer in Charge [Waybenais].\\\" Vol. II, Trans, at 74. The prosecution did not present a witness or other evidence during its case-in-chief to show that either the secretary or another person served the termination notice on Platero. In fact, the secretary was not called as a witness at all, and specifically to show what happened to Platero's termination notice after it was placed in her custody.\\nMeanwhile, John met with tribal officials at the Navajo Nation Department of Justice, and there it was decided that he would meet with the police officers, who were assembled at the academy to inform them of his authority.\\nJohn and other tribal officials reached the academy meeting room a little past noon. He went to a podium before the assembled officers, and began to explain his appointment and authority to them. He had spoken only a few minutes when five command officers, including Waybenais, Captain Bobby Edsitty, and Platero entered the room. Waybenais walked up to John, demanded to know his authority for speaking to the officers, and then grabbed him, announcing that he was under arrest. Several witnesses agreed that Waybenais' ground for arrest was that John was impersonating a police officer. Witnesses differed on whether Waybenais directly ordered Platero to complete the arrest, or whether Platero acted spontaneously. Platero put John's left arm behind his back, and pushed him out of the academy entry way. Platero and another officer escorted John into the main police building, and booked him for impersonating a police officer. The charge was later dismissed. When John was asked if he was injured, he replied, \\\"No, I wasn't injured, but I felt a pain. \\\" Vol. IE, Trans, at 18.\\n'On the morning of April 14, 1989, and at the time of the incident, Platero was jnjmiform, and he was with the area and district commanders when they entered the academy meeting room. He and another officer acted as if they were police officers, by marching John into the police station and booking him.\\nPlatero was charged with the offense of battery, 17 N.T.C. \\u00a7 316(a) (1977), when John filed a criminal complaint against him. The case went to trial before a jury on April 11, 1991, and at the close of the prosecution's case, the defense moved the court to enter a judgment of acquittal. The defense argued that the prosecution had failed to prove that Platero acted \\\"unlawfully,\\\" an essential element of the offense of battery. The motion was denied. Platero was convicted and he appealed that judgment of conviction on June 7, 1991. Platero presented a myriad of issues on appeal. This Court, however, decided to dispose of the appeal using the issue of whether the district court abused its discretion by denying Platero's motion for acquittal, which was based upon the prosecution's failure to prove an element of the offense of battery; namely \\\"unlawfully\\\" striking or using force on another. Based upon our review of the prosecution's case as laid out in the transcript, we ruled for Platero. Our October 15,1991 order is not based upon Platero's testimony that he did not receive his termination notice or know of his termination until the afternoon following his arrest of John. Further, the order is not influenced by any proceeding in the federal courts. The order is based solely upon an assignment of error that the district court abused its discretion by not granting the motion for acquittal.\\nII\\nSince time immemorial the Navajo people have applied their customs and traditions in dispute resolution. Even with the Navajo Court of Indian Offenses, the Navajo judges of that court, under often adverse circumstances, continued to apply Navajo customs and traditions in cases brought before them. Navajo courts of today are no exception, they apply customs and traditions as the laws of preference. The Navajo Nation Council has legislated that as a requirement. 7 N.T.C. \\u00a7 204 (1985).\\nIt should come as no surprise that the customs and traditions of the Navajo people have the force of law. They provide a unique body of law known as Navajo common law. Estate of Belone, 5 Nav. R. 161, 165 (1987); Estate of Apachee, 4 Nav. R. 178, 179-81 (Window Rock D. Ct., 1983). Navajo courts constantly apply Navajo common law in civil cases, and in at least one reported decision, a Navajo trial court applied Navajo common law in a criminal action. In re Interest ofD.P.!, 3 Nav. R. 255 (Crownpoint D. Ct., 1982). The United States Supreme Court has also unanimously confirmed the authority of the Navajo courts to use Navajo common law in criminal cases. United States v. Wheeler, 435 U.S. 313, 331-32 (1978). In order to assure Navajo due process, which is fundamental fairness in a Navajo cultural context, we shall apply Navajo common law to this case. The facts of the case require it.\\nA\\nPlatero's defense counsel alluded to Navajo common law during jury selection. He said, \\\"Navajo people believe that it is wrong to hurt a person needlessly,\\\" and he told the prospective jurors that that was the reason the prosecution must prove its case beyond a reasonable doubt. Vol. I, Trans, at 85. That, restated, means that Platero should not be punished (jailed or fined) unless the prosecution can show a valid reason for doing so. When Navajos say that it is wrong to hurt a person needlessly, that means that a valid reason for inflicting punishment must be clearly present before actual punishment is inflicted. The reason being that actual coercion or punishment were actions of last resort in Navajo common law. While Navajos would shun a repeat offender, or one who committed a particularly heinous crime, they would not do so unless the act was willful or intentional. Individuals also would not be shunned or punished for good faith acts.\\nThe general Navajo common law principle applicable here is one that protects a person clothed with authority in the exercise of that authority until the person actually knows he or she has been relieved of authority. Specifically, as it relates to Platero, he could not be convicted unless he actually knew he did not have a right to act as a police officer, and obey the command of a superior officer. Thus, the prosecution, in proving the element of unlawfulness, had to make it clear that Platero actually knew he had no police authority, and in spite of that knowledge, he acted to arrest John.\\nThere is nothing in the record to show that Platero actually received his termination notice. Hawkins delivered the termination notices, including Platero's, in a sealed envelope to a secretary about two hours before the incident. On cross-examination by a defense counsel, Hawkins admitted that he did not know whether Platero received his. In fact, Hawkins admitted he bypassed the usual procedure for serving termination notices, by delivering them to a secretary, rather than serving them on the affected individuals himself. Most of the prosecution's proof about Platero's lack of authority focused on the termination notice, but glaringly absent was any direct or circumstantial proof of service of the notice on Platero prior to the arrest incident.\\nAt one point on re-cross examination, when defense counsel was repetitiously pounding the point of a lack of proof of service of the termination notice, asking Hawkins about his knowledge of actual delivery, the court interrupted and observed, \\\"that's what he already answered. He said he didn't know if everybody got served.\\\" Vol. II, Trans, at 83. Hawkins was responsible for delivery of the notices, but he did not obtain proof of their service. He could only speculate about service, and offered nothing to show it was made prior to the incident.\\nThe prosecution could have produced the person who delivered the notice to Platero, to testify about when, where, and how it was served. The prosecution did not produce that witness, and that would lead a court to conclude that the testimony of the witness would have been unfavorable to the prosecution. This brings up a point - whether the prosecution suppressed exculpatory evidence by not producing whoever served the notices - but we will not address that here. It is enough to conclude that given the failure of the prosecution to show Platero received actual notice of his termination, the trial judge should have granted the motion for acquittal. The prosecution did not make it clear that Platero did not act as a police officer, or under color of authority.\\nOne witness made an aside remark that Platero had previously \\\"made the statement he was terminated,\\\" Vol. II, Trans, at 25, but the remark had no foundation, and there was no showing it was based on personal knowledge of an admission actually made by Platero. The prosecution now urges the validity of the \\\"admission,\\\" but at trial it did not follow up on the remark to show the foundation for it. While an admission against interest is an exception to the hearsay rule, Nav. R. Evid. 26, in criminal matters there must be a foundation for testimony about an admission, showing the circumstances under which the purported admission was made, and personal knowledge of it. An admission against interest must have indicators of reliability. The remark carries little weight.\\nWe will continue to examine criminal records and transcripts for fundamental fairness, applying Navajo common law where appropriate, to protect defendants from abuses. The Navajo Nation Council decided, in 1977, to place the element \\\"unlawful\\\" in the battery statute. The prosecution recognized the element, and proceeded on a theory that Platero did not act lawfully because of his termination. It proved there was a termination notice in existence the day before the incident, and proved delivery of a batch of notices to a secretary two hours before the incident. The prosecution did not prove actual notice, when it could have. We cannot uphold this conviction where there is a failure to prove something so elemental as showing that Platero knew he had no right to act as a police officer.\\nB\\nThe Navajo Nation Council did not choose to enact Section 2.12 of the Model Penal Code, which allows a court to dismiss a prosecution for de minimis infractions. However, that power is implicit in 17 N.T.C. \\u00a7 202(1) (1977), because of what it says on its face. If a criminal prosecution violates a purpose of the Criminal Code, that should be a ground for dismissal. We choose, however, not to usurp prosecutorial authority in applying the de minimis rule. Law enforcement agencies and prosecutors have an inherent power \\\"to ignore merely technical violations of law.\\\" 1 American Law Institute, Model Penal Code and Commentaries 389-90 (1985).\\nDuring the time the public refers to as \\\"the turmoil,\\\" the Government of the Navajo Nation was on the brink of collapse. The police command was muddled, because some superior officers chose to be bogged down with politics. Here, the authority of the area commander (Waybenais) was not clear, and the prosecution did not prove Platero was not that person's lawful junior officer. During the defense phase of the trial, John was asked about his three separate attempts to tell his police officers he was in command - on April 5th, 7th, and 14th. When asked, \\\"Were you successful?\\\" John replied, \\\"I was unsuccessful to the point of being arrested.\\\" Vol. Ill, Trans, at 20. That describes the confusion well.\\nThe transcript contains descriptions of the incident as a \\\"near riot,\\\" where \\\"everybody jumped\\\" when the area commander announced \\\"you're under arrest!\\\" It was a \\\"scuffle\\\" and \\\"the tension was high.\\\" Police officers squared off against each other in a policeman's brawl. John and Waybenais were both sub jected to force, and the transcript shows that several officers engaged in an affray. This is not the sort of thing the Navajo courts should have to hear.\\nPolice officers have a certain trust of the people. When they lose sight of their obligations to serve and protect, the safety of the public is compromised, and the public trust is tarnished. The Navajo public definitely expects its police officers to hold themselves to the highest degree of professionalism.\\nIll\\nThe question of whether the Navajo Nation was entitled to oral argument is moot, because it knew the disposition would be on the record, and did not claim one. It waived oral argument. Furthermore, whether oral argument should be scheduled or not is within the discretion of the Court. In this appeal, the evidence (or lack thereof), was clear from the transcript, and oral argument would have added nothing.\\nThe other ground of the petition, a purported conflict of interest by a member of the staff of the Supreme Court, is not relevant to the issue. We decided there was no conflict of interest at the time of initial review of the appeal. We remind the public that the judges of the Navajo Nation, and not their advisors, make judicial decisions.\\nFinally, there is no justification for the attacks on the integrity of either the justices of this Court or on a member of the chief justice's staff, which were made in the petition. The conduct of certain attorneys in making these unwarranted attacks, and in handling matters related to this petition, will be dealt with separately.\\nWe hold that, upon reconsideration, our October 15,1991 order is correct. The conviction of Patrick Platero is reversed and the Window Rock District Court shall enter an order of dismissal, with prejudice.\"}"

navajo_nation/530293.json

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+"{\"id\": \"530293\", \"name\": \"Wesley Begay, Appellant, v. Lena Begay, Appellee\", \"name_abbreviation\": \"Begay v. Begay\", \"decision_date\": \"1989-06-29\", \"docket_number\": \"No. A-CV-20-88\", \"first_page\": 120, \"last_page\": 123, \"citations\": \"6 Navajo Rptr. 120\", \"volume\": \"6\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T21:44:15.784960+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before TSO, Chief Justice, BLUEHOUSE and AUSTIN, Associate Justices.\", \"parties\": \"Wesley Begay, Appellant, v. Lena Begay, Appellee.\", \"head_matter\": \"No. A-CV-20-88\\nSupreme Court of the Navajo Nation\\nWesley Begay, Appellant, v. Lena Begay, Appellee.\\nDecided June 29, 1989\\nBefore TSO, Chief Justice, BLUEHOUSE and AUSTIN, Associate Justices.\\nGary E. LaRance, Esq., Tuba City, Arizona, for the Appellant; Loretta E. Nez, Esq., DNA - People\\u2019s Legal Services, Inc., Tuba City, Arizona, for the Appellee.\", \"word_count\": \"1541\", \"char_count\": \"9130\", \"text\": \"OPINION\\nOpinion delivered by\\nBluehouse, Associate Justice.\\nThis matter comes before the Court on an appeal of a default divorce decree entered against the appellant by the Tuba City District Court on July 21, 1988. The district court denied appellant's motion to set aside the default divorce decree and he has subsequently filed a notice of appeal. Appellee has moved to dismiss the appeal, citing failure to timely file a brief pursuant to Rule 12(c) of the Navaio Rules of Civil Appellate Procedure (1987 ed.)(NRCAP). After review, we grant appellee's motion.\\nOn May 20, 1988, appellant, Wesley Begay, was served with a petition and summons informing him that a divorce proceeding had been commenced in Tuba City District Court by appellee, Lena Begay. According to Rule 4 of the Navajo Rules of Civil Procedure, Mr. Begay had until June 20,1988 to file an answer to the petition. Mr. Begay failed to file an answer within the prescribed period, and on July 21, 1988, a default divorce decree was entered in Tuba City District Court. Mr. Begay then moved to set aside the default decree, which was denied on October 10, 1988. Mr. Begay filed an appeal from the denial of the motion to set aside the default decree on November 4, 1988.\\nA notice of docketed appeal was mailed to the parties by the supreme court clerk in accordance with NRCAP 10(b) on December 5, 1988. Pursuant to NRCAP 12(a), Mr. Begay had thirty days from the date the court clerk mailed the notice to file his brief. Mr. Begay filed his brief on January 13, 1989, two days late. On January 26, 1989, Ms. Begay filed this motion to dismiss, pursuant to NRCAP 12(c), alleging that because Mr. Begay's brief was filed late, his appeal should be dismissed. Mr. Begay did not respond to the motion to dismiss, or oth erwise attempt to explain why his brief was filed late. We dismiss the appeal.\\nNRCAP 12(a) is clear in its mandate: \\\"The appellant shall file his brief... within thirty (30) days after the Clerk of the Supreme Court mails the notice [of docketing] required by Rule 10(b).\\\" NRCAP 12(a). The rules allow for an additional seven days if the notice of docketed appeal is served upon the appellant by mail. NRCAP 5(c). If the appellant fails to file his brief in a timely manner, appellee has a remedy under NRCAP 12(c), which allows for dismissal upon appellee's motion. This Court has said that a filing deadline is not a target date, but an integral element of the adversarial process which requires close scrutiny by the litigants involved. Riverview Service Station v. Eddie, 5 Nav. R. 135, 136 (1986).\\nThe appellant had ample time (from November 4, 1988 until January 11, 1989) to outline, prepare arguments, write and file his brief. Nevertheless, appellant, by mail, filed his brief on January 13, 1989; two days late. This Court has recently directed that if papers are filed by mail, \\\"sufficient time for delivery must be allowed so that the [papers] will be in the custody of the clerk and filed before expiration of the time established.\\\" In re Estate of Wauneka Sr., 6 Nav. R. 63, 64 (1988); In re Adoption of Doe, 5 Nav. R. 141, 143 (1987). The additional time granted by NRCAP 5(c) allows a litigant the full thirty days to prepare his brief and still satisfy the filing deadline. It remains the litigant's responsibility, however, to ensure that the filing deadline is met.\\nThe appellant also had a remedy if the deadline became unmanageable: he could have filed for an extension of time, before the expiration of the prescribed time, pursuant to NRCAP 5(b). In re Estate of Wauneka Sr., 6 Nav. R. at 64. NRCAP 5(b) clearly states that \\\"[t]he time for doing any of the acts provided for in these rules, or by order of the Supreme Court, or by any applicable statute, may be shorted or extended . upon written motion for good cause shown....\\\" NRCAP 5(b). The deadline is not dispensed with casually, and a showing of good cause is a prerequisite for an extension. Here, however, there was no attempt at a good cause showing, as no motion for extension was ever filed. The appellate rules set standards for procedural conduct and provide for dispensations under appropriate circumstances. When they are ignored or abandoned, however, this Court is disinclined toward leniency, and will treat the violations as evidence of a lack of good faith. Justice, fairness to all litigants, and judicial efficiency demand no less. As an Arizona court explained: \\\"Although the sanction of dismissal may seem harsh in the context of a particular case, it will have a prophylactic effect in the long run. By enforcing the minimal standards of advocacy set forth in the rules of civil appellate procedure, we necessarily elevate the level of appellate practice to a higher plane. If we ignore a failure to comply with these elementary rules and tolerate unprofessional standards, it will be the clients, the public, the bar and the courts which ultimately suffer.\\\" Adams v. Valley National Bank of Arizona, 139 Ariz. 340, 342, 678 P.2d 525, 527 (1984).\\nAppellant has failed to meet the minimal standards which the rules demand. As the Second Circuit has repeatedly held regarding briefs and motions untime ly filed, \\\"[ujnless application for extended time is made... it is evidence of a lack of good faith and, failing extraordinary circumstances, it constitutes neglect which will not be excused.\\\" Gilroy v. Erie Lackawanna R.R., 421 F.2d 1321, 1323 (2d Cir. 1970). The appellate rules which the Navajo Supreme Court has promulgated are equally demanding. They provide for the rapid, equitable, and inexpensive disposition of advanced litigation before the Court, and unauthorized deviations may prejudice the adverse party and impede judiciary efficiency. This Court has discretionary authority to accept a brief that is filed late. Absent a showing of good cause for the untimely submission, however, the appeal will be dismissed.\\nFurthermore, it is impossible to ignore the consistent pattern of missed deadlines which has marred the advocatory management of this case from the outset. The deadline for filing an answer to the petition with the district court was missed by appellant because his counsel canceled their initial meeting. The initiation of an attorney-client relationship, at its earliest stages, places a fiduciary obligation upon the attorney. The existence of outside commitments does not excuse an attorney from the performance of present ones owed to his client nor does it excuse the party himself from satisfying rules of court. It is well established that \\\"preoccupation of counsel with other matters does not dispense with the rules that require timely filing.\\\" Moncaida v. Roscoe, 569 F.2d 828, 830 (5th Cir. 1978) (quoting United States v. Bowen, 310 F.2d 45, 47 (5th Cir. 1962).\\nFinally, appellant's failure to file a response in opposition to appellee's motion for dismissal demonstrates a profound indifference to the final disposition of this case. Whether this disregard is attributed to counsel or appellant is irrelevant at this stage of the litigation; it is simply another signpost along a path of indifference which this case has followed from the very beginning.\\nThe Rules of Civil Appellate Procedure operates for the benefit of the litigants, the court, and the public. The rules are also quite clear in their individual mandate: Rule 12(a) requires the appellant to file his brief within thirty days after the clerk serves the notice of docketing; Rule 5(c) allows an additional seven days if the notice of docketed appeal is served on the appellant by mail; and Rule 5(b) provides for an extension of the filing deadline upon motion, with a showing of good cause. The rules, however, also impose a sanction. If appellant flouts the minimal standards imposed and files his brief late, the appellee, pursuant to NRCAP 12(c), can move for dismissal of the appeal. To prevent such dismissal, the appellant must demonstrate good cause why the brief was filed late. Placing blame on the slowness of mail through the postal system is not good cause. See In re Adoption of Doe, 5 Nav. R. at 143.\\nFailure to follow simple appellate procedure \\\"[ijmpedes the just, speedy, and inexpensive disposition of judicial business,\\\" and will not be tolerated. Community Coalition for Media Change v. Federal Communications Comm'n, 646 F.2d 613, 616 (D.C. Cir. 1980). It is the responsibility of each litigant to ensure the proper and timely filing of all papers, briefs, and motions. Appellant's brief had a January 11,1989 filing deadline. It was not filed with this Court until January 13,1989; two days late. Mr. Begay has failed to show good cause for the untimely filing. Ms. Begay's motion to dismiss the appeal under NRCAP 12(c) is therefore granted.\\nAppeal dismissed.\"}"

navajo_nation/530297.json

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+"{\"id\": \"530297\", \"name\": \"Herman Silver, Appellant, v. Marie Keyonnie, Appellee\", \"name_abbreviation\": \"Silver v. Keyonnie\", \"decision_date\": \"1991-02-26\", \"docket_number\": \"No. A-CV-45-90\", \"first_page\": 357, \"last_page\": 359, \"citations\": \"6 Navajo Rptr. 357\", \"volume\": \"6\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T21:44:15.784960+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before TSO, Chief Justice, BLUEHOUSE and AUSTIN, Associate Justices.\", \"parties\": \"Herman Silver, Appellant, v. Marie Keyonnie, Appellee.\", \"head_matter\": \"No. A-CV-45-90\\nSupreme Court of the Navajo Nation\\nHerman Silver, Appellant, v. Marie Keyonnie, Appellee.\\nDecided February 26, 1991\\nBefore TSO, Chief Justice, BLUEHOUSE and AUSTIN, Associate Justices.\\nAlbert Hale, Esq., Window Rock, Navajo Nation (Arizona), for the Appellant; and John A. Chapela, Esq., Window Rock, Navajo Nation (Arizona), for the Appellee.\", \"word_count\": \"1054\", \"char_count\": \"6422\", \"text\": \"OPINION\\nOpinion delivered by\\nAUSTIN, Associate Justice.\\nThis is an appeal taken by Herman Silver (\\\"appellant\\\") from a final order of the Window Rock District Court, dated October 3,1991, recognizing and enforcing a support decree entered by the 13th Judicial District Court of the State of New Mexico; finding that appellant had failed to comply with the support decree; awarding $7,365.00 in delinquent child support to Marie Keyonnie (\\\"appellee\\\"); and ordering the garnishment of appellant's wages at Pittsburg & Midway Coal Mining Company.\\nAppellee has filed a motion to dismiss the appeal, citing appellant's failure to timely file his opening brief pursuant to Rule 12(c) of the Navajo Rules of Civil Appellate Procedure (\\\"NRCAP\\\"). Based upon our review of the requisites for perfection of an appeal and of the procedural history of this appeal, we grant appellee's motion to dismiss.\\nI\\nThe pertinent procedural facts are as follows: The Window Rock Family Court filed its order on October 3, 1990. Appellant timely filed his notice of appeal on November 2,1990. On December 11,1990, pursuant to NRCAP 10(b), a notice of docketed appeal was sent, by certified mail, to each counsel for the parties. Appellant then had thirty-seven days from the date the court clerk mailed the notice, or until January 17, 1991, to file his opening brief. NRCAP 12(a), as adjusted by NRCAP 5(c); Begay v. Begay, 6 Nav. R. 120 (1989).\\nOn January 7,1991, appellant's counsel petitioned this Court for an extension, to January 14,1991, on the time to file appellant's brief, citing the physical inca pacity of his secretary. The extension was granted, and appellant was given until January 16, 1991, to file his brief. On January 14, 1991, counsel for appellant petitioned this Court for a second extension, to January 21,1991, on the time for filing appellant's brief. Once again appellant's counsel cited his secretary's health as \\\"good cause.\\\" The second extension was granted, and appellant was allowed until January 28, 1991, to file his brief.\\nAt approximately 5:15 p.m. on January 28, 1991, counsel for appellant attempted to file appellant's brief with this Court. It being past closing time for the Court, appellant's counsel was informed that the brief would not be accepted for filing that day. Appellant's counsel returned January 29, 1991, and filed the brief.\\nAppellant has responded to appellee's motion to dismiss by asking this Court to permit the late filing and to review the appeal on its merits.\\nII\\nAppellant's plea to ignore his tardiness and to consider his appeal on its merits is not new to this Court. We considered the same problem in Begay v. Begay, id. There, the appellant filed his brief two days late, without explanation for its untimeliness, and the appellee, two weeks later, successfully motioned this Court to dismiss the appeal.\\nIn Begay, we extensively reviewed the reasons for strictly holding the parties to the briefing schedule. There, we found that \\\"a filing deadline is not a target date, but an integral element of the adversarial process which requires close scrutiny by the litigants involved.\\\" Id. at 121, citing Riverside Service Station v. Eddie, 5 Nav. R. 135, 136 (1987). We also found that \\\"[j]ustice, fairness to all litigants, and judicial efficiency demand\\\" that, absent a showing of \\\"good cause,\\\" violations of the procedural rules will be construed as evidence of a lack of good faith and as an adequate basis for dismissal of the appeal. Id. Consequently, we established the following rule: \\\"This Court has discretionary authority to accept a brief that is filed late. Absent a showing of good cause for the untimely submission, however, the appeal will be dismissed.\\\" Id. at 122.\\nIn Begay, the appellant did not even respond to the appellee's motion to dismiss for untimeliness, leaving us with no possibility of finding \\\"good cause\\\" upon which we could exercise discretion to consider the appeal on its merits. Here, that is not the case. Appellant has responded to appellee's motion to dismiss. However, it takes no more than a cursory examination of appellant's response to conclude that the requisite \\\"good cause\\\" to deny appellee's motion has not been shown.\\nAppellant claims that his counsel attempted to file his brief on the day it was due, January 28, 1991, but was rebuffed by Court personnel. In carefully deleting any mention of when \\u2014 what hour of the day \\u2014 his attorney approached the Court, appellant insinuates that the filing would have been timely, save for the absence of key Court personnel. That clearly was not the case. As we have stressed before, this Court accepts filing only during the normal business hours of eight o'clock in the morning to five o'clock of that afternoon, and \\\"no pleading of any sort is accepted for filing after five o'clock in the afternoon.\\\" Viva Rancho Motors, Inc. v. Tully, 5 Nav. R. 145, 146 (1987). Appellant's counsel came to the door of the court fifteen minutes after closing. That being the case, appellant's complaint that his brief was untimely because the doors of the Court were shut to him is without merit.\\nAppellant offers no other explanation for the untimeliness of his brief which we could use to find \\\"good cause\\\" for ignoring his tardiness. Upon appellant's counsel's claim of illness in his office, we exercised our discretion for appellant, not once, but twice, and allowed him extra weeks to prepare his brief. Indeed, our second order extended the timeframe for appellant a full week beyond the date he himself requested. But we have been offered no persuasive, nor even plausible, reason for the type of procrastination which led to the arrival of his counsel at the Court's door fifteen minutes after closing.\\nWe find that appellant's response to appellee's motion to dismiss fails entirely to provide any basis upon which we could find \\\"good cause\\\" for the untimely filing of appellant's brief. Lacking that prerequisite for a favorable exercise of our discretion, we cannot hear his appeal on the merits.\\nAppellant's appeal is DISMISSED.\"}"

navajo_nation/530302.json

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+"{\"id\": \"530302\", \"name\": \"Edison Burnside, Plaintiff, v. Genevieve Burnside, Defendant\", \"name_abbreviation\": \"Burnside v. Burnside\", \"decision_date\": \"1990-10-19\", \"docket_number\": \"Nos. TC-CV-073-87, TC-CV-025-84\", \"first_page\": 551, \"last_page\": 559, \"citations\": \"6 Navajo Rptr. 551\", \"volume\": \"6\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Family Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T21:44:15.784960+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judge Wayne Cadman, Sr. presiding.\", \"parties\": \"Edison Burnside, Plaintiff, v. Genevieve Burnside, Defendant.\", \"head_matter\": \"Nos. TC-CV-073-87, TC-CV-025-84\\nFamily Court of the Navajo Nation Judicial District of Tuba City, Arizona\\nEdison Burnside, Plaintiff, v. Genevieve Burnside, Defendant.\\nDecided October 19, 1990\\nJudge Wayne Cadman, Sr. presiding.\", \"word_count\": \"4092\", \"char_count\": \"24600\", \"text\": \"ORDER\\nThis matter having come before the Court on June 7, 23 and 24,1988 for final hearings with the plaintiff represented by Gary LaRance, and the defendant represented by Timothy Joe and subsequently Steven Boos of the Mexican Hat D.N.A., the Court upon review of the oral testimony and physical evidence presented, hereby finds:\\nFINDINGS OF FACT\\n1. This matter stems from a Petition for Modification of Child Custody, Contempt, and Accounting filed by the plaintiff on February 23, 1987.\\n2. Plaintiff and defendant stipulated to A) the Court's continuing Jurisdiction as it arises from a Divorce Decree issued on February 20,1985, B) that the physical custody of the three minor children were awarded to the defendant, and C) that the plaintiff was granted visitation rights.\\n3. The Court further took Judicial notice of A) the Order for Pendente Lite visitation of December 5, 1984 issued by the Honorable Robert Walters, B) the Marital Settlement Agreement which was incorporated into the February 20,\\n1985 Divorce Decree issued by the Honorable Robert Walters, C) the October 31, 1986 Order issued by the Honorable Evelyn Bradley, D) the December 1,\\n1986 Attachment Order issued by the Honorable Evelyn Bradley, and E) the August 4, 1987 Order issued by the Honorable Wayne Cadman, Sr.\\n4. The minor children at issue in this cause of action are: Shannon Burnside, DOB: 05/28/76, C#619,435; Tom Burnside, DOB: 10/19/79, C#623,282; and Rochelle Burnside, DOB: 09/20/81, C#625,896.\\n5. The Marital Settlement Agreement established a savings account in the amount of $5,000.00 with the Valley National Bank in Page, Arizona under Account # 31337968 for the sole use of the minor children for their education and in case of emergencies with all withdrawals to be consented to by both parties.\\n6. Shannon Burnside is a thirteen year old Navajo child who presently resides with her siblings, natural mother Genevieve (Burnside) Black, and stepfather Roy Lee Black in Shonto, Arizona. She is enrolled with the Kayenta Unified School District and is in the seventh grade.\\n7. Tom Burnside is a ten year old Navajo child who also resides with his siblings, natural mother and stepfather in Shonto, Arizona and is enrolled with the Shonto Boarding School and is in the fourth grade.\\n8. Rochelle Burnside is an eight year old Navajo child who also resides with her siblings, natural mother and stepfather in Shonto, Arizona and is enrolled with the Shonto Boarding School and is in the second grade.\\n9. Genevieve (Burnside) Black is a thirty-three years old Navajo mother who was previously married to Edison Burnside and was divorced on February 20, 1985. Mrs. Black is presently employed with the Shonto Boarding School and has been for the past thirteen years. She has been with Facility Maintenance since February 1988 with an income of $7.50 per hour with forty hour work week and works from 8:00 A.M. to 5:00 RM. daily. Mrs. Black presently resides with her three children from her marriage to Edison Burnside, her two children from Roy Lee Black, who are three and two years old, and her husband in a three bedroom government house in Shonto, Arizona. Mrs. Black is a member of the Native American Church and is a member of the Board of Directors from District 8 of the Association.\\n10. Roy Lee Black is a thirty-three years old Navajo male married to Genevieve Black from Long House Valley. Mr. Black presently resides with Genevieve Black, the three Burnside children, and his two children from his present marriage in Shonto, Arizona. Mr. Black is presently employed by Peabody Coal Company and earns an income of $16.65 per hour with an average of thirty-six hour work week. Mr. Burnside met Genevieve Black in September of 1984 and were married on October 20, 1986.\\n11. Edison Burnside is thirty-seven years old and is the natural father of Shannon, Tom, and Rochelle Burnside. Mr. Burnside presently resides in Page, Arizona and is employed by Peabody Coal Company at the Black Mesa Mine as an Electrician and earns an income of $18.17 per hour with an average work week of forty hours. He works from 12:00 midnight to 8:00 A.M. Mr. Burnside presently resides with Grade Bileen at his trailer in Page, Arizona.\\n12. Edison Burnside has an Associate of Arts Degree in Electronics and resides in a two bedroom trailer in Page, Arizona and that photographs of the interior show that the trailer is well furnished with expensive pieces of furniture.\\n13. Grade Bileen is a thirty-six year old Navajo woman with four children, the oldest being twenty-three years and the youngest being six years old. The oldest daughter is presently caring for her three siblings in Teec Nos Pos, Arizona and does not live with her and Edison Burnside. Ms. Bileen met Edison Burnside in 1987 and began cohabitating with him since 1987. She is presently employed by two restaurants in Page, Arizona.\\n14. Kathryn Tsosie of Chinle Navajo Division of Social Welfare Office submitted a written Social Investigation on June 6,1988 listing her interviews, findings and six recommendations to the Court.\\n15. The Social Worker defined the \\\"Alignment Principle\\\" as one parent aligning a child's thoughts and actions to diminish relations with the other parent.\\n16. Edison Burnside, since December 14, 1984 to the most recent attempted visitation on August 14,1988, has made approximately 14 attempted visitations only to be informed by Mrs. Black that the children did not wish to see him, and she would not force them to see him.\\n17. It is apparent that the parties had bitter feelings toward each other during the divorce and that these feelings continued after the divorce. These feelings are evidenced by arguments ensuing between the parties during visitations and at times in front of the children.\\n18. These arguments often stem from the time when the parties separated in July of 1984 when Mr. Burnside had the electricity disconnected and took a washing machine and other household items. At this time, the children were eight, four and two years old respectively. Police officers were sometimes called for assistance when the parties began arguments or disputes over visitation by the plaintiff which often resulted in the plaintiff being advised to take the matter back to Court.\\n19. Since Mrs. Black has two younger daughters by her present marriage, a baby-sitter comes daily when the Blacks are working until she returns after 5:00 P.M. The three Burnside children are normally in school from 8:30 A.M. to 3:30 P.M. daily.\\n20. The Blacks have stressed the importance of Navajo traditions and culture and presently teach them to the Burnside children and their own children. At times, the children are taken to their grandparents home to visit and herd sheep.\\n21. The Burnside children have accepted Roy Lee Black as their father and refer to him as \\\"father\\\" and \\\"daddy,\\\" and their relationship is good. Mr. Black also provides for the family needs and attends parent meetings held at the school for the Burnside children.\\n22. During the visitations made by Edison Burnside, the children became disturbed and frightened and refused to see their natural father. These fears were often aggravated by the presence of police officers called for assistance by the defendant and by the arguments and verbal confrontations.\\n23. The observations by the relatives of Genevieve Black, the Burnside children's teacher, and the Social Worker in her report all indicated that Mrs. Black was a caring mother and provided for the needs of the children.\\n24. Edison Burnside never hurt the children during their marriage, aside from normal spanking for discipline.\\n25.Edison Burnside indicated that if the children are placed in his home, his working hours would not conflict with being away from the children as they would be asleep from midnight to the early morning hours. Grade Bileen would be available to see them off to school. Mr. Burnside stated that he planned to enroll the children in the Page Public Schools.\\n26. Mrs. Black's criminal history reflects only two convictions for speeding with the most recent offense in May of 1984. Mr. Burnside's criminal history record reflects ten convictions for speeding and one pending with the most recent case being in October 1989.\\n27. On September 13, 1985, Genevieve Black withdrew $5,076.72 from the Valley National Bank in Page, Arizona which was to be used for the education of the children and for emergencies as stipulated in the Marital Settlement Agreement, and without the consent of the plaintiff. Mrs. Black alleges to have deposited the money into the Coconino Federal Credit Union in Flagstaff, Arizona but refuses to specify the amount or account number. Some of the money was also alleged to have been used for clothing purchases for the children, but Mrs. Black failed to produce any receipts or supply an itemized accounting with amounts to the present date, even though an Interim Order of July 27, 1988 ordered Mrs. Black to: A) disclose how the money was used upon withdrawal; and B) show the current balance on deposit at Coconino Credit Union no later than July 8, 1988.\\n28. The first attempts at visitation by the plaintiff were on December 14,1984 and December 21 - 25, 1984, but were denied due to no one being home at the Black's residence even though the defendant had prior knowledge of Court Ordered visitation in accordance with the Pendente Lite Order for Visitation issued by the Honorable Robert Walters on December 4, 1984.\\n29. A third scheduled visitation on February 9, 1985 was also denied due to family members informing plaintiff that the children were afraid of him and did not want to see him, and that defendant had prior knowledge of this visitation by the February 20, 1985 Divorce Decree and the terms of the Marital Settlement Agreement.\\n30. A fourth visitation scheduled for the Easter weekend of April 6, 1985 was also denied for reasons of no one being home at the Black residence in Shonto, Arizona.\\n31. A fifth visitation was scheduled for July 5, 1985 in accordance with the Divorce Decree of February 20, 1985 and the Marital Settlement Agreement, but was denied due to no one being home again at the Black residence.\\n32.A sixth visitation was scheduled for October 31, 1986, but was again denied as only the baby-sitter was home, and stated that the Blacks took the Burnside children to the Arizona State Fair in Phoenix, Arizona. This visitation was ordered by the Honorable Evelyn Bradley through her Findings and Order of October 31, 1986.\\n33. A seventh visitation was scheduled for the weekend of December 6-7, 1986 but was denied again, and was scheduled in accordance with the Supplemental Visitation Plan ordered by the Honorable Evelyn Bradley on December 1, 1986.\\n34. An eighth visitation scheduled for the weekend of December 23 - 24,1986 was not made. Although the plaintiff saw the children, no visitation occurred. An officer was summoned due to an argument between the plaintiff and Mrs. Black's mother, Dianna Calamity, and plaintiff further threatened Mrs. Black's father, Trixie Calamity, over ruining his vehicles through witchcraft. The plaintiff took the youngest child, Rochelle, but upon arrival of Police Officer Robert Clitso, the child was returned to the defendant. Officer Clitso refused to permit the children to visit with their father and advised the plaintiff to leave the residence. This scheduled visitation was also ordered by the December 1, 1986 Supplemental Visitation Plan issued by the Honorable Evelyn Bradley.\\n35. A ninth visitation was scheduled for the weekend of January 3 -4, 1987, but was again denied. The plaintiff saw one of the children at the window but no one answered the door. Police Officer Harrison Navajo then came and requested the plaintiff to leave since the children did not want to see him. This scheduled visitation was ordered in the Supplemental Visitation Plan ordered by the Honorable Evelyn Bradley on December 1, 1986.\\n36. A tenth and eleventh visitation were attempted by the plaintiff on February 7 and again on February 8, 1987, but were again denied due to no one being home at the Black residence in Shonto, Arizona. This visitation was also ordered by the December 1,1986 Supplemental Visitation Plan ordered by the Honorable Evelyn Bradley.\\n37. Subsequent scheduled visitations set for the weekends of March 25 - 26, 1987; April 4 - 5, 1987; May 2 - 3, 1987; June 6 - 7, and July 4 - 5, 1987 were not attempted by the plaintiff due to his discouraged and frustrated attempts to visit his children.\\n38. A twelfth visitation was attempted by the plaintiff on August 7, 1987 upon an Order for Visitation issued by the Honorable Wayne Cadman, Sr. on August 4,1987, and by previous agreement by the parties, was to have Mrs. Black bring the children to the Law Office of Gary LaRance for the plaintiff to pick up. But this visitation never occurred and Mrs. Black did not bring the children to the Law Office, and when Mr. Burnside went to the residence of the defendant, no one was home.\\n39. A thirteenth visitation was attempted by the plaintiff on August 14, 1987, but again no one was home and no visitation occurred. This visitation was also ordered by the August 4,1987 order issued by the Honorable Wayne Cadman, Sr.\\n40. A final attempt at visitation by the plaintiff was on December 25,1987, but due to verbal confrontation with the defendant's present husband, Roy Lee Black, the visitation did not occur. The plaintiff tape recorded this conversation and was allowed into evidence.\\n41. Shannon Burnside is afraid of her father because she was told by Genevieve Black he did not take care of them, he had a gun and he always hurt her mother. If she was forced to go with her father, she stated she \\\"would rather go to jail.\\\"\\n42. Tom Burnside really did not know his father and is not afraid of him, and on one occasion went shopping for clothes with his father in Flagstaff, Arizona. He could not read the letter that was sent to the Social Worker but signed it when Shannon asked him to.\\nCONCLUSIONS OF LAW\\nI. WHETHER THE PRESENT CUSTODY OF THE THREE MINOR CHILDREN SHOULD BE CHANGED WHEN THE CHILDREN REFUSE TO VISIT A NONCUSTODIAL PARENT\\nThere is nothing specifically stated in the Navajo Tribal Code to address the issue of a noncustodial parent's visitation right. 9 N.T.C. Sec. 404 does state that a \\\"divorce decree shall provide for a fair and just settlement of property rights between the parties, and also for the custody and proper care of the minor children.\\\" Since there is no Navajo law, then under 7 N.T.C. Sec. 204(c), Navajo courts may apply the laws of the state in which the matter in dispute may lie. Johnson v. Dixon, 4 Nav. R. 108 (1983). The law of the state in this case would be A.R.S. 25-337 which states:\\nA parent not granted custody of the child is entitled to reasonable visitation rights to ensure that the minor child has frequent and continuing contact with the noncustodial parent unless the court finds that visitation would endanger seriously a child's physical, mental, moral or emotional health.\\nThis Court, while not bound by Arizona laws, may use the statute as guidance. Here, Edison Burnside, the noncustodial parent, is entitled to reasonable visitation rights with the minor children. Mr. Burnside has consistently sought to exercise his visitation rights since before the divorce and afterwards.\\nGenerally, the question of whether to limit the visitation rights of the noncustodial parent because visitation would endanger seriously a child's physical, mental, moral or emotional health is committed to the sound discretion of the trial court but the power is to be exercised with caution and restraint. Only under extraordinary circumstances should a parent be denied the right of visitation. Reardon v. Reardon, 3 Ariz. App. 475, 415 P.2d 257 (1966). There is no evidence of misconduct on the part of Mr. Burnside. Neither is there evidence of any deficiency or instability in the father's home. Rather, the father has attempted to increase his time and involvement with the children by asking the Court to increase his visitation rights. See orders of December 1, 1986 and August 4, 1987.\\nHowever, the evidence shows that the children did not wish to see their father and were afraid of him. There is substantial evidence that the mother has consistently and deliberately frustrated, obstructed, and hindered the father's visitation rights, thereby seriously damaging the relationship between the children and their father. The children have rejected their father to the point where one claims that she would \\\"rather go to jail\\\" than be with her father. An Arizona case relied on a Pennsylvania court opinion to address the issue whether minor children should be required to visit the noncustodial parent despite their desire not to do so. That court held that the custodial parent could be directed to exercise parental authority over the minor children so as to require compliance with a visitation order. Sholty v. Sherrill, 129 Ariz. 458, 632 P.2d 268 (1981), citing Fernald v. Fernald, 224 Pa. Super. 93, 302 A.2d 470 (1973); Commonwealth v. Fotz, 188 Pa. Super. 241, 146 A.2d 362 (1958). In Fotz, the court rejected the argument that the 13 year old child should not be forced to visit her father where the child has a strong fear of her father because it appeared he had struck and kicked the child before. The court held that the best interests of the child would be advanced by effecting a reconciliation with her father. To deny visitation rights could only lead to permanent estrangement between the child and the father. Therefore, the court held that it had the power to require the mother to exercise parental control to compel the child to visit her father.\\nHere, the District Court agrees with this view. Where a mother's attitude toward visitation has been a contributing factor in destroying a relationship between a child and the father, the Court will require the mother to exercise her parental control over her child and take steps to reestablish a relationship between the child and the father. Here, the mother aligned the children, specifically Shannon, against her father. Shannon then influenced her younger siblings. Shannon has the same attitude as her mother, that she won't be forced to see her father and would rather go to jail. The children were too young when the separation occurred and information on the father can only be obtained from their mother.\\nThe children's conflicting emotions stem from the mother's attitudes rather than by any overt mistreatment by the father. There could be a beneficial visitation if the children could be assisted in ridding themselves of the stress and psychological damage. Measures should be taken to attempt to heal the wounds suffered by the children and the parents.\\nHowever, the mother persistently avoids visitation by being away from home. She does recognize the right of visitation, provided the father has \\\"the right attitude.\\\" In her opinion, the right attitude is communicating with her and Roy Lee Black.\\nThe alignment instilled by the mother is damaging to the moral and emotional health of the children and can be overcome by counseling. Counseling needs to include both noncustodial father and mother as well and should be more concerned about the children than their differences resulting in bitter feelings towards each other during and after the divorce. These feelings are evidenced by arguments ensuing between the parents during visitations and at times in front of the children. Children should not be left in this type of environment. Although the children's needs are provided for by the mother and removing them would be detrimental, the future of the children far outweigh the present.\\nIt is in the best interests of the children that they be removed from the residence of the mother and be placed in the care of the Navajo Nation Division of Social Services where they can receive proper guidance and counseling. The children need to reestablish a relationship with their father before it is beyond repair. Because of the history of the mother, this goal cannot be accomplished by leaving the children in her continued custody. This Court has continually issued warnings and orders regarding visitation which have been ignored. The Court has no choice now but to intervene and place the children in the care of the Social Services - until further notice of this Court.\\nII. WHETHER A CUSTODIAL PARENT MAY BE HELD FOR CONTEMPT OF COURT FOR ALLEGEDLY MISUSING THE JOINT TENANCY TRUST ACCOUNT AS ESTABLISHED BY A DIVORCE DECREE AND FOR ALLEGEDLY INTERFERING WITH COURT ORDERED VISITATION SCHEDULES\\nThe Navajo Nation courts have inherent power to punish for contempt. The court must always first determine whether the person's conduct constitutes contempt. A failure to obey an order of the court is contempt. John v. Herrick, 5 Nav. R. 129, 130 (1987). The facts show that the mother deliberately disobeyed the terms of the Marital Settlement Agreement establishing a trust fund at Valley National Bank which was to be used for the education and emergencies of the children. Withdrawals were to be made only upon consent by both parties.\\nOn September 13, 1985, Genevieve Black proceeded to withdraw $5,076.72 from the Valley National Bank in Page, Arizona, without the consent of the plaintiff. Mrs. Black indicated that some of the money was redeposited into the Coconino Federal Credit Union in Flagstaff, Arizona, but refused to specify the amount or account number. The rest of the money was used for clothing purchases for the children but failed to produce any receipts or an itemized accounting with amounts to the present date. An Interim Order of July 27, 1988 ordered Mrs. Black to disclose how the money was used upon withdrawal and show the current balance on deposit at Coconino Credit Union no later than July 8, 1988. Mrs. Black did neither.\\nIn addition, the mother deliberately disobeyed the Pendente Lite Order for visitation (Dec. 4, 1984), Divorce Decree (Feb. 20, 1985), Order of October 31, 1986, Supplemental Visitation Plan (Dec. 1, 1986), and Order of Aug. 4, 1987 granting the father visitation rights. The father attempted 14 scheduled visitations between December, 1984 and 1987.\\nThere is substantial evidence that the mother disobeyed the authority of this Court and interfered with the father's visitation rights as follows: (1) by leaving visitation to the discretion of the children; (2) by refusing to answer the door when the father arrived to pick up the children; (3) by calling the Tribal Police for assistance when their presence was unnecessary and using the police to hinder visitation; (4) by refusing to exercise parental control to compel the children to visit their father; and (5) by contributing to the children's rejection of their father.\\nORDER\\nIT IS THEREFORE ORDERED that the said minor children shall immediately be placed in the legal custody, care, and control of the Tuba City Navajo Division of Social Services until further order by the Court.\\nIT IS FURTHER ORDERED that the Navajo Division of Social Services shall commence counseling sessions with both the plaintiff and defendant concerning 1) the alignment of the children against the plaintiff, 2) for visitations, and 3) parenting skills.\\nIT IS FURTHER ORDERED that the defendant is found to be in indirect contempt for disobeying the Marital Settlement Agreement which was incorporated into the Final Divorce Decree concerning the withdrawal of $5,076.72 on September 13,1985; and is in indirect contempt for violating the provisions of the Interim Order issued on July 27,1988 for failing to disclose to the Court as to how the money was used, and the current amount in the Coconino Credit Union; and that the defendant be immediately taken into custody and detained at the Navajo Division of Public Safety in Tuba City, Arizona and held until a sum of $5,076.72 is deposited into a trust account for the benefit of the three minor children with disbursements to be supervised by the Navajo Division of Social Welfare.\\nIT IS FURTHER ORDERED that all visitations by both parents with the minor children be supervised by the Navajo Division of Social Welfare.\\nIT IS FURTHER ORDERED that a review hearing shall be held within 90 days from the date of this order.\"}"

navajo_nation/530306.json

@@ -0,0 +1 @@
+"{\"id\": \"530306\", \"name\": \"Navajo Nation, Plaintiff, v. Peter MacDonald Sr., Defendant\", \"name_abbreviation\": \"Navajo Nation v. MacDonald\", \"decision_date\": \"1990-09-06\", \"docket_number\": \"No. A-CV-31-90\", \"first_page\": 204, \"last_page\": 205, \"citations\": \"6 Navajo Rptr. 204\", \"volume\": \"6\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-10T21:44:15.784960+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before TSO, Chief Justice, AUSTIN and CADMAN (sitting by designation), Associate Justices.\", \"parties\": \"Navajo Nation, Plaintiff, v. Peter MacDonald Sr., Defendant.\", \"head_matter\": \"No. A-CV-31-90\\nSupreme Court of the Navajo Nation\\nNavajo Nation, Plaintiff, v. Peter MacDonald Sr., Defendant.\\nDecided September 6, 1990\\nBefore TSO, Chief Justice, AUSTIN and CADMAN (sitting by designation), Associate Justices.\\nRichard W. Hughes, Esq., Special Prosecutor for the Navajo Nation, Santa Fe, New Mexico, for the Plaintiff; and Peter Breen, Esq., Navajo Legal Aid and Defender Service, Window Rock, Navajo Nation (Arizona), for the Defendant.\", \"word_count\": \"728\", \"char_count\": \"4581\", \"text\": \"OPINION\\nOpinion delivered by\\nTSO, Chief Justice.\\nThis is an original proceeding in this Court on a request for acceptance of a certified question from the Window Rock District Court. The issue is whether this Court should accept the question certified by the trial judge.\\nI. Facts\\nOn August 22, 1990, defendant Peter MacDonald Sr. filed a motion with the Window Rock District Court requesting that Judge Robert Yazzie disqualify himself from any proceeding involving the defendant in Navajo Nation v. MacDonald, No. WR-CR-3682-3740-89 and No. WR-CR-3617-3641-89. As summarized, defendant's ground for the motion is that Judge Yazzie is personally biased against him because he attempted to \\\"fire\\\" the judge in the past.\\nOn August 23, 1990, Judge Yazzie entered an order certifying the following question to this Court: \\\"Is a judge required to disqualify himself for the reasons and under the circumstances set forth in the motions attached to and made a part of this order.\\\" Facts relevant to this question were not stated in the order.\\nOn August 31, 1990, defendant filed with this Court a \\\"motion in opposition to acceptance of jurisdiction\\\" over the certified question. Defendant requests that this Court decline jurisdiction over the certified question. On September 6,1990, plaintiff filed a response to defendant's motion essentially arguing that this Court should accept and decide the question certified by Judge Yazzie.\\nII. Discussion\\nA question can be certified to this Court by a trial court as a special proceeding authorized by decisions of this Court. See Navajo Housing Authority v. Betsoi, 5 Nav. R. 5 (1984); In re Certified Questions I, 6 Nav. R. 97 (1989); In re Certified Questions II, 6 Nav. R. 105 (1989). In Betsoi, the Court permitted trial courts to certify questions to this Court as a special proceeding authorized by Rule 16 of the Navajo Rules of Appellate Procedure. In civil actions, the Navajo Rules of Appellate Procedure has been superseded by the Navajo Rules of Civil Appellate Procedure. In spite of this, trial courts can continue to certify questions to this Court as a special proceeding authorized by decisions of this Court.\\nWhether to accept a certified question is a matter within the discretion of this Court. Certifying questions, however, should not be a method used by trial courts to avoid deciding issues properly before them. To prevent the remedy of certification of question from becoming meaningless, this Court will examine each question certified against the language in Betsoi to determine whether the question should be accepted.\\nThe initial inquiry on every question certified to this Court is whether the question is one that is proper for this Court to address. For this Court to make that determination, the question certified must be \\\"carefully and precisely framed to present distinctly and clearly the question or proposition of law involved. The certificate should contain the proper statement of the ultimate facts upon which the question arises and should clearly show in what respect the instruction of decision of the appellate court is desired.\\\" Betsoi, 5 Nav. R. at 7\\nThe question certified in this case is not in compliance with the procedural requirements of Betsoi. First, the question certified is not carefully and precisely framed. The question concerns disqualification of the judge, but it further incorporates two motions and an affidavit filed by the defendant's counsels requesting disqualification as part of the certified question. The many pages comprising the motions and affidavit contain numerous factual allegations in support of the motions. The certified question therefore is broad and imprecise. Second, the order certifying the question does not contain facts upon which the question arises. Third, the question of whether a judge should disqualify himself on allegations of bias, we believe, is a proper issue for that trial judge to decide. At least under the circumstances of this case, it is not a proper question for certification.\\nFor the reasons set forth in this opinion, this Court will not accept the question certified.\"}"

navajo_nation/6755244.json

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+"{\"id\": \"6755244\", \"name\": \"THE NAVAJO TRIBE OF INDIANS Plaintiff-Appellee vs. MARILYN LITTLEMAN Defendant-Appellant\", \"name_abbreviation\": \"Navajo Tribe of Indians v. Littleman\", \"decision_date\": \"1971-12-07\", \"docket_number\": \"\", \"first_page\": 33, \"last_page\": 36, \"citations\": \"1 Navajo Rptr. 33\", \"volume\": \"1\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-11T02:37:42.549288+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before KIRK, Chief Justice, BECENTt and BENNALLEY, Associate Justices\", \"parties\": \"THE NAVAJO TRIBE OF INDIANS Plaintiff-Appellee vs. MARILYN LITTLEMAN Defendant-Appellant\", \"head_matter\": \"THE NAVAJO TRIBE OF INDIANS Plaintiff-Appellee vs. MARILYN LITTLEMAN Defendant-Appellant\\nDecided December 7, 1971\\nMerwin Lynch, Deputy Trial Prosecutor, Office of the Prosecutor, Window Rock, Arizona, for Plaintiff-Appellee\\nNorman Ration, Reynold Harrison, D. N, A., Window Rock, Arizona, for Defendant-Appellant\\nBefore KIRK, Chief Justice, BECENTt and BENNALLEY, Associate Justices\", \"word_count\": \"611\", \"char_count\": \"3655\", \"text\": \"KIRK, Chief Justice\\nAppeal from a judgment of the Trial Court for the District of Window Rock, Arizona, finding the defendant guilty of a violation of Title 14, Section 252, Navajo Tribal Code, by failing to use due care while driving a vehicle upon a roadway and from a sentence that the defendant serve 30 days in jail.\\nOn the 29th day of April, 1971, the defendant while driving a pickup truck on Navajo Route #12, a public roadway within the jurisdiction of the Navajo Courts, near Fort Defiance, Arizona, struck and killed a six year old child who was crossing the highway immediately in front of the defendant's truck at the time.\\nA complaint was issued against the defendant charging her with failure to use due care. The case was heard by the Trial Court without a jury, the defendant was found guilty and it comes before this Court for a trial de novo.\\nAfter hearing the evidence on appeal this Court finds that the evidence is insufficient to sustain a finding of guilty beyond a reasonable doubt. However, the Court is not at all satisfied that the defendant used all due care and precautions which she should have used under the circumstances.\\nIn this respect the Court will take judicial notice that highway and traffic conditions on the Navajo Reservation require an extra degree of caution and due care and that Navajo drivers are under a duty to use a higher degree of care because of the general lack of fences and open range conditions on the reservation with horses, sheep and other animals apt to wander onto the highways. There are, in general, no sidewalks or marked pedestrian crossings in the towns on the reservation and many people walk along and cross highways at unexpected points.\\nThe Tribal Council has recognized these conditions in enacting Section 252, Title 14, Navajo Tribal Code, under which Navajos are required to:\\n\\\"... exercise proper precaution upon observing any child or any obviously confused or incapacitated person upon a roadway.11\\nWe strongly recommend that signs be erected calling for much slower vehicle speeds at all points where there are apt to be children or other people near or upon the highway and that crosswalks be marked on the pavement at points where there are frequent pedestrian crossings, that many of the posted speed limits be lowered and that generally more warnings be posted. In this case the posted speed limit was 45 miles per hour. We consider that the defendant may have failed to use due care in this case by driving at 25 miles per hour.\\nCounsel for both parties have presented rather extensive briefs on the application of the ruling in Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2nd 694, to the present case. It appeared from the evidence that the police officer called to the scene of the accident asked the defendant about the circumstances and she admitted to him that she was driving the vehicle that struck the child. Since the defendant subsequently took the witness stand on her own behalf and admitted she was the driver, we cannot see that the Miranda ruling has application to this case.\\nIt is ORDERED that a judgment of acquittal be entered and that the defendant be immediately discharged.\\nBECENTI, Associate Justice and BENN ALLEY, Associate concur. Justice,\"}"

navajo_nation/6755386.json

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+"{\"id\": \"6755386\", \"name\": \"JOSE PABLO TRUJILLO Plaintiff-Appellee vs. WILBUR MORGAN Defendant-Appellant\", \"name_abbreviation\": \"Trujillo v. Morgan\", \"decision_date\": \"1970-03-19\", \"docket_number\": \"\", \"first_page\": 55, \"last_page\": 58, \"citations\": \"1 Navajo Rptr. 55\", \"volume\": \"1\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-11T02:37:42.549288+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"JOSE PABLO TRUJILLO Plaintiff-Appellee vs. WILBUR MORGAN Defendant-Appellant\", \"head_matter\": \"JOSE PABLO TRUJILLO Plaintiff-Appellee vs. WILBUR MORGAN Defendant-Appellant\\nDecided on March 19, 1970\\nLeonard Jimson and Tom Galbraith, D.N.A., Window Rock, Arizona, for Plaintiff-Appellee\\nPerry Allen, Office of the Prosecutor, Window Rock, Arizona, William MacPherson and Warren Bachtel, Office of the General Counsel, Window Rock, Arizona, for Defendant-Appellant\", \"word_count\": \"730\", \"char_count\": \"4273\", \"text\": \"KIRK, Chief Justice\\nThe Court of Appeals of the Navajo Tribe, Acting Chief Justice, Virgil L. Kirk, Sr., sitting solely heard ora! argument of both parties on the propriety of the Trial Courtis denial of a motion to dismiss filed by counsel for the Navajo Tribe and Wilbur Morgan.\\nThe motion to dismiss was based on the contention that the Court had no jurisdiction to hear the case on its merits by operation of Resolution CJY-70-69 of the Navajo Tribal Council, Sections 2(5) (F) and 2(5) (D).\\nSection 2(5) (F) provides:\\n\\\"AH cases presently pending before the Advisory Committee of the Navajo Tribal Council shall be transferred to the Trial Courts of the Navajo Tribe, subject to Subparagraph D of this Section\\\",\\nSubparagraph D of Section 2(5) states in relevant part:\\n\\\"The Navajo Tribe, by the Tribal Prosecutor, or the applicant may appeal any decision of the Screening Committee or its lawful successor, or Trial Court of the Navajo Tribe . within the time provided by law for appeals from judgments of the Trial Courts of the Navajo Tribe .\\\"\\nMr. Trujillo appeared before the Screening Committee in 1956 and was denied admission to membership. In 1969 he requested a rehearing of his case to the Advisory Committee. The Tribal Council by its language in Section 2(5) (F) \\\"transferred\\\" all cases pending before the Advisory Committee to the Trial Courts. The Trujillo case was then pending and was also \\\"transferred\\\" to the Trial Court. No provision was made how the transfer should occur; but Mr. Trujillo initiated his action in the Trial Court at Crownpoint on December 18, 1969, since no other provision had been made for transfer. Appellant argues that the case is an appeal and that it was appealed to late, therefore, being cut off Resolution CJY-70-69, however, transferred all cases then pending before the Advisory Committee to the Trial Courts. Mr. Trujillo's case had previously been cut off from appeal In 1956. When Mr. Trujillo again placed his request for membership in the hands of the Advisory Committee the fact that he was not denied access to the Committee had the effect of giving him another hearing. By transferring the case to the Trial Court, the Council reopened the case. Reconsideration of Trujillo's case could have been denied either by the Council or the Advisory Committee, but it was not. No time limitation was stated in the Resolution for taking a transferred case to the Trial Court, nor was it made clear whether it was an automatic transfer as the language might be taken to apply or the interested party must hand carry it to the Courts. The limitation of thirty days refers only to cases appealed from the Screening Committee to the Trial Court or from the Trial Court to the Court of Appeals. If the Council meant something other than this, it was not stated in the Resolution nor in the discussion in Council chambers at the time the Resolution was passed. Only the cases which were pending before the Advisory Committee at the time of the Resolution's passage (July 24, 1969) were transferred to the Trial Court. All other cases must be appealed to the Trial Court as outlined in Section 2(5) (D) from a final order of the Screening Committee. Here there was no final order and could therefore be no appeal. This is so because any appeal from prior Screening Committee or Advisory Committee action had already passed its time limitation.\\nFor the above reasons, denial of the motion to dismiss is therefore denied. This case has been heard on its merits in the Trial Court and an appeal on that case is pending before this Court. Because of the nature of the case it is ORDERED that it be a de novo or new trial.\\nThe Court of Appeals chastises counsel for the appellee for their late appearance and apologizes to counsel for the appellant for Its own late appearance.\\nDONE in open Court on the 12th day of MARCH and SIGNED on the 19th day of MARCH 1970.\"}"

navajo_nation/6755814.json

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+"{\"id\": \"6755814\", \"name\": \"THE NAVAJO NATION Plaintiff-Appellee vs. MARIE FRANKLIN Defendant-Appellant\", \"name_abbreviation\": \"Navajo Nation v. Franklin\", \"decision_date\": \"1977-03-14\", \"docket_number\": \"\", \"first_page\": 145, \"last_page\": 149, \"citations\": \"1 Navajo Rptr. 145\", \"volume\": \"1\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-11T02:37:42.549288+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before KIRK, Chief Justice, BECENTI and BLUEHOUSE, Associate Justices\", \"parties\": \"THE NAVAJO NATION Plaintiff-Appellee vs. MARIE FRANKLIN Defendant-Appellant\", \"head_matter\": \"THE NAVAJO NATION Plaintiff-Appellee vs. MARIE FRANKLIN Defendant-Appellant\\nDecided on March 14, 1977\\nHerman Light, District Prosecutor, Shiprock, New Mexico, for Plaintiff-Appellee\\nKenneth Begay, D. N. A., Window Rock, Arizona, for Defendant-Appellant\\nBefore KIRK, Chief Justice, BECENTI and BLUEHOUSE, Associate Justices\", \"word_count\": \"1046\", \"char_count\": \"6170\", \"text\": \"KIRK, Chief Justice\\nThis case came on appeal from a conviction of defendant-appellant of the charge of selling liquor in violation of 17 N.T.C. 561.\\nWe are aware that the appellant took the stand in her own behalf at her trial and made statements that tend to support her conviction. However, there are important issues presented, by this case which the Court of Appeals .wishes to discuss and therefore we do not choose to uphold the conviction, on that basis.. . -\\nThe questions presented by this case are:\\n1. Under what conditions may the police conduct warrant-less searches when it is clear that they could have gotten a search warrant in advance?\\n2. What is the scope of the \\\"plain view\\\" doctrine under Navajo law?\\nNeither counsel for the appellant nor counsel for the government focused clearly on these two issues in their briefs and oral argument. The facts, as best we can determine them from the imcomplete record presented to us, are the following:\\n1. Acting on a tip from an informer, on March 7, 1976, the police, dressed in plainclothes, went to the home of Marie Franklin to purchase liquor.\\n2. When they knocked on her door, Marie Franklin opened it and, after some discussion, sold the police officer liquor in violation of 17 N.T.C. 561.\\n3. Upon being sold the liquor, the police arrested Ms. Franklin, entered her home, and conducted an extensive search, seizing an unspecified quantity of liquor, said by counsel for the government to have been in plain view of the opened door at which the purchase was made.\\nIn any situation in which the police have information in advance of a planned operation sufficient to establish probable cause to obtain a search warrant, they must obtain such a warrant. To allow any other practice would in effect negate, the substantive protections of Title 1, Section 4 of the Navajo Tribal Code. This is the \\\"search and seizure\\\" section of the Navajo Bill of Rights.\\nThe situation in this case is confused by the fact that apparently the government is claiming that probable cause developed only at the scene and therefore a search warrant was not needed. We are not satisfied, upon examining the District Court record and after hearing oral argument, that such was the case. Even if liquor was in fact in plain view at the time of the arrest, the questions surrounding the search remain.\\nAt the time Marie Franklin was arrested, her entire house was extensively searched. The plain-view doctrine as we apply it only permits the seizure of the thing actually in plain view, the theory being that no \\\"search\\\" was really necessary to reveal the evidence seized. Therefore, once the police gain access to a place to seize something they have seen while outside, they can only seize the object which was already visible and any other materials that then are in plain view of the thing being seized.\\nObviously, then, the plain-view doctrine has limits. It does not authorize the police to open doors, drawers, and cabinets. Nor does this doctrine allow police to enter and search areas not within plain view of the thing being seized. The over-reaching search in this case was indefensible. However, the record is not clear as to what evidence was seized in the illegal portion of the search and whether such evidence was material to the -nviction.\\nTherefore, this case Is remanded to the District Court with instructions to hold a hearing on the following issues*\\n1. Whether the Navajo Division of Law Enforcement had probable cause to obtain a search warrant in advance of the search;\\n2. Whether liquor was in plain view of the officer making the purchase; and\\n3. Whether any evidence seized in the illegal portion of the search was material to the conviction.\\nif it is determined by the District Court that the police could have gotten a search warrant but did not, or that no liquor was in plain view of the arresting officer, or that evidence seized illegally was material to the conviction, then Marie Franklin's conviction shall be reversed.\\nIt is so ordered.\"}"

navajo_nation/6756137.json

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+"{\"id\": \"6756137\", \"name\": \"THE NAVAJO TRIBE, Plaintiff-Appellee vs. RONALD CURLEY, Defendant-Appellant\", \"name_abbreviation\": \"Navajo Tribe v. Curley\", \"decision_date\": \"1978\", \"docket_number\": \"No.: A-CR-04-77\", \"first_page\": 236, \"last_page\": 237, \"citations\": \"1 Navajo Rptr. 236\", \"volume\": \"1\", \"reporter\": \"Navajo Reporter\", \"court\": \"Navajo Nation Supreme Court\", \"jurisdiction\": \"Navajo Nation\", \"last_updated\": \"2021-08-11T02:37:42.549288+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"THE NAVAJO TRIBE, Plaintiff-Appellee vs. RONALD CURLEY, Defendant-Appellant\", \"head_matter\": \"IN THE COURT OF APPEALS OF THE NAVAJO NATION WINDOW ROCK, NAVAJO NATION (ARIZONA)\\nTHE NAVAJO TRIBE, Plaintiff-Appellee vs. RONALD CURLEY, Defendant-Appellant\\nNo.: A-CR-04-77\", \"word_count\": \"156\", \"char_count\": \"923\", \"text\": \"ORDER DISMISSING APPEAL\\nThe Appeal in the above-entitled matter, filed the 10th day of August, 197?, having been received and considered by the Chief Justice pursuant to 7 N.T.C. Section 451, the Court finds:\\nAppellant has failed to make a motion pursuant to Rule 5(d), Rules of the Court of Appeals, to correct the alleged error. rH\\n2. Title 14, Section 245 of the Navajo Tribal Code allows a judge a impose of sentence of six (6) months or $500.00 or both.\\n3. The remaining sentences are not appealable under 7 N.T.C. Section 172 as the sentence is less than 15 days and/or $26.00 fine.\\nTherefore, the appeal in the above-entitled matter is DISMISSED.\\nDated this 29th day of September, 1977.\\nVirgil L. Kirk, Sr. Chief Justice of the Navajo Nation\"}"