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https://www.courtlistener.com/api/rest/v3/opinions/8502749/ | ORDER DISMISSING PETITION FOR WRIT OF MANDAMUS
The Petition for a Writ of Mandamus having been considered by the Court, the Court finds:
1. The Shiprock District Court has granted a change of venue in the above-entitled action.
2. The relief prayed for by the petitioner has been completely granted by the district court.
Therefore, the Petition for a Writ of Mandamus is DISMISSED.
Dated this 22nd day of November, 1977.
Virgil L, Bark,,Sr.7 Chief Justice of the Navajo Nation | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502750/ | ORDER DISMISSING APPEAL
The Appeal in the above-entitled matter, filed the 27th day of July, 1977, having been received and considered pursuant to 7 N.T.C. Section 451, the Court finds:
1. There was sufficient evidence introduced by the Appellee to warrant the conviction.
2. Appellant was convicted on the basis of the evidence presented by the witnesses and not upon the Court's belief that he had a guilty conscience.
Therefore, the appeal in the above-entitled matter is DISMISSED.
The Stay of Execution, entered the 11th day of July, 1977, is hereby VACATED.
*230Dated this 3rd day of October, 1377.
Virgil L. Kirk, Sr. Chief Justice of the Navajo Nation | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502752/ | ORDER DISMISSING APPEAL
The Appeal in the above-entitled matter, filed the 19th day of September, 1977, having been received and considered by the Chief Justice pursuant to 7 N.T.C. Section 451, the Court finds:
That the brief was not timely filed; H
2. That the document of September 19, 1977, is not a brief. Counsel for appellant is referred to Black's Law Dictionary for the definition of a brief.
Therefore, the appeal the above-entitled matter is DISMISSED.
The Stay of Execution, entered the 21st day of September, 1977, is hereby VACATED.
*233Dated this 17th day of October, 1977.
Virgil L. Kirk, Sr. Chief Justice of the Navajo Nation | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502754/ | ORDER DISMISSING APPEAL
The 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:
Appellant has failed to make a motion pursuant to Rule 5(d), Rules of the Court of Appeals, to correct the alleged error. rH
2. 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.
3. 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.
*237Therefore, the appeal in the above-entitled matter is DISMISSED.
Dated this 29th day of September, 1977.
Virgil L. Kirk, Sr. Chief Justice of the Navajo Nation | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502755/ | ORDER
Appellee's motion for reconsideration having been considered by th Chief Justice, it is hereby DISMISSED as untimely filed.
Since the principal issue is one properly raised only before oral argument, its dismissal for lack of timeliness is dispositive and the tangential matters raised in the motion need not be considered.
Dated this 25th day of August, 1977.
Virgil L. Kirk, Sr. Chief Justice of the Navajo Nation | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502756/ | ORDER DISMISSING APPEAL
The Notice of Appeal and supporting brief, filed the 9th day of June, 1977, having been received and considered by the Chief Justice pursuant to 7 N.T.C, Section 254, the Court finds:
1. Appellant has faded to show any error of law by the District Court.
2. Any review of the evidence already presented in this case by the Court of Appeals would amount to this Court second-guessing the District Court, Appellant has faded to offer any new evidence.
Therefore, the appeal in the above-entitled matter is hereby DISMISSED.
*240Dated this 30th day of August, 197?,
Virgil L. Kirk, Sr, Chief Justice of the Navajo Nation | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502757/ | ORDER DISMISSING APPEAL
The Notice of Appeal and the Motion to Dismiss Appeal having been received and considered by the Chief Justice pursuant to 7 N.T.C. Section 451, the Court finds;
The amended complaint was filed on August 12, 1978,
2. An order dismissing the complaint was entered on September 29, 1976.
3. A motion to vacate the order dismissing the complaint was filed on October 22, 1976. This motion was denied on April 8, 1977.
4. Plaintiff is appealing the order of April 8, 1977.
5. In Rule 2 of the Rules of the Court of Appeals, it states that an appeal shall be filed within thirty (30) calendar *242dajs of the date of the final judgment or order.
6. The order dismissing the complaint was the final order in the above-entitled matter and was not timely appealed.
7. The filing of a motion to vacate the order of dismissal does not toll the time for appeal, which must be taken within thirty (30) days of the final order,
THEREFORE, the Motion to Dismiss Appeal is ALLOWED and the appeal is hereby DISMISSED.
Dated this 16th day of June, 1977.
Virgil L. Kirk, Sr. Chief Justice of the Navajo Nation | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502925/ | OPINION
Opinion delivered by
Tso, Chief Justice.
This is an appeal from the October 17, 1990 jury verdicts and the October 22, 1990 judgments of conviction of Peter MacDonald Sr. (MacDonald). He was convicted on 41 criminal counts, including charges of bribery in official matters, use of office for personal gain, conflicts of interest, taking official action on matters where there is a personal interest, and conspiracy to violate those criminal laws. On appeal, MacDonald makes twelve assignments of error.
The record of this case is large, and the briefs filed by the parties are extensive. For simplicity and economy in rendering an opinion, the issues are restated as follows:
1. Was the petit jury properly constituted and selected?
a. Was the jury randomly selected, and was it representative of the community?
b. Did the trial court abuse its discretion in the manner in which it permitted challenges to jurors?
2. Was MacDonald denied the right to counsel by conflicts of attorney-client interests, either by the method of attorney compensation or attorney performance?
a. Did the method of attorney compensation by the Navajo Nation, and events surrounding its negotiation, create a conflict of interest which caused ineffective assistance of counsel?
b. Did a sealed motion, filed with the trial court, constitute a conflict of interest?
*433c. Was counsel’s performance at the trial level ineffective, and did it reflect a conflict of interest?
3. Was the evidence admitted at trial competent, relevant, and fair, and was there substantial evidence to support the jury verdicts?
a. Was testimony on governmental procedures and business arrangements irrelevant and prejudicial?
b. Was MacDonald impermissibly denied the right to confront witnesses, and did hearsay testimony fall within exceptions to the hearsay rule?
c. Was the evidence presented to the jury sufficient to prove each and every element of the offenses charged, beyond a reasonable doubt?
d. Does the record show cumulative trial errors which denied MacDonald a fair trial, or does it show instances of harmless error?
4. Did the trial court use excessive charges to impose double punishment upon MacDonald, and did it impose cruel and unusual punishment upon him?
a. Did multiple criminal charges violate prohibitions against double punishment and subject MacDonald to double jeopardy?
b. Is a sentence of five years, and 335 days in jail for 41 violations of Navajo Nation criminal law cruel and unusual punishment?
This Court’s standard of review in criminal cases focuses upon the essential fairness of the proceedings. The Court will examine any error, whether or not it is raised by a defendant, which is plain and affects substantial rights, or if review is necessary to avoid grave injustice. Navajo Nation v. Platero, 6 Nav. R. 422, 428 (1991). In order to reverse a conviction, there must be prejudicial error. That sort of error must affect and deny substantial rights, but where it is harmless in its effect, it will be disregarded. Id. Where constitutional or quasi-constitutional rights are not involved, we decide whether, in light of all admissible evidence, the jury’s finding of guilt is clearly correct. Id. at 428. Criminal convictions and the application of the Navajo Nation Bill of Rights will be reviewed in light of the fundamental principles of Navajo common law. Id. at 424; Bennett v. Navajo Board of Election Supervisors; 6 Nav. R. 319, 324 (1990).
I. SELECTION OF THE JURY
A. The Fair Cross Section Requirement
MacDonald argues that Austin Dawes, a court clerk, “arbitrarily hand picked” prospective jurors, on the basis of race, and that the jury was not a fair cross section of the community. The Navajo Nation replies that MacDonald demanded a “constitutional” jury panel and for that reason, the court used voter lists of the Navajo Nation and Arizona’s Apache and Navajo Counties to select prospective jurors. The parties agree that George v. Navajo Tribe, 2 Nav. R. 1 (1979), and the jury eligibility statute, 7 N.T.C. § 654, require a jury composed of both Navajos and non-Navajos. The “Dawes Method” was to pick names at random from the *434Navajo Nation voter list, based on age and residence, and to pick individuals from county voter registration lists using last names which appeared to be non-Indian. Jurors drawn from the Navajo Nation list are members of the Navajo Tribe, while those from county lists could be Navajos (because many Navajos have Anglo last names) or non-Navajos. They could be Indian or non-Indian, which voter registration lists do not disclose.
The requirement that a jury must be a fair cross section of the community comes from the United States Supreme Court ruling in Glasser v. United States, 315 U.S. 60 (1942). The rule was applied to the states in Duncan v. Louisiana, 391 U.S. 145 (1968). The standards for the rule are found in Taylor v. Louisiana, 419 U.S. 522 (1975), and they are as follows: 1) juries must be drawn from a source which is fairly representative of the community, but need not mirror it; 2) all defendants may assert the right, including people who are not members of an excluded group (i.e. Indians can challenge the exclusion of non-Indians from juries); and 3) a defendant can prevail by showing a systematic exclusion of distinctive groups of people; but not an occasional mistaken exclusion. The groups which must not be excluded include “large distinctive groups” and “[ijdentifiable segments playing major roles in the community.” 2 Lafave & Israel, Criminal Procedure § 21.2(d) (1984). These rules will be applied in Navajo courts.
MacDonald initiated the jury selection process used here, and he cannot induce errors and then complain of them. Navajo Nation v. MacDonald and concerning Moeller et al., 6 Nav. R. 222, 234 (1990). Tribal courts have unique problems selecting juries. If tribal rolls or voter registration lists are used, defendants will complain about the exclusion of nonmember Indians or non-Indians as distinctive groups or identifiable segments of the community. If tribes use county voter registration lists, on-reservation nonmember Indians will challenge being summoned for jury duty, and off-reservation individuals will contest the authority of a tribal court to summon them. It is difficult to cull motor vehicle license or registration lists, assuming they are available, due to the same considerations.
The Dawes Method of selecting the array does not violate any of the rules set forth above. It is genuinely random and satisfies the fair cross section requirement. There is no evidence that the selection was race-based. Instead, it guaranteed that the jury drawn for MacDonald would not be composed solely of tribal members. It was reasonably representative of communities found within the Window Rock District, and it achieved that goal in a random manner.
The proper procedure is to challenge the array or jury panel, addressing the entire panel, in writing. The burden will be on the defendant to show that the jury does not satisfy the fair cross section requirement, which caused prejudice. Minor irregularities in drawing the panel will be disregarded.
B. Jury Selection Process
MacDonald argues that the trial court erred when it required him to exhaust his peremptory challenges before allowing him to use challenges for cause. *435Specifically, he says that he was forced to use his last peremptory challenge to remove Delbert Brown, who was ineligible because he did not reside in the district. MacDonald says that his challenge for cause against Robert Ramirez was then denied, although Ramirez had been “exposed to immunized testimony.” At that point, there was no peremptory challenge to use on Ramirez.
We agree with MacDonald that the trial court erred, however, it is harmless error. The record shows, first, while Ramirez was selected as an alternate, he was not a member of the actual jury which decided the case; second, the alleged “immunized testimony” to which Ramirez was “exposed” was a newspaper story about Peter MacDonald Jr.’s testimony before a Senate Investigations Committee regarding the code term “golf balls,” in a wholly separate matter - the Big Boquillas Ranch purchase; and third, there is nothing in the record to indicate that Ramirez had his mind made up about MacDonald’s guilt, and “[i]t is sufficient if a juror can lay aside his impression or opinion and render verdict based on the evidence presented in court.” Irvin v. Dowd, 366 U.S. 717, 723 (1961).
Parties have three peremptory challenges and unlimited challenges for cause. 7 N.T.C. § 655. Peremptory challenges are controlled by statute, and errors in denying them are not questions of constitutional law. Ross v. Oklahoma, 487 U.S. 81 (1988). There is nothing in the Indian Civil Rights Act or Navajo Nation Bill of Rights which require them. MacDonald cannot point to any fixed and firm practice regarding how courts require parties to use their peremptory challenges. In some jurisdictions, the parties are required to use them as each juror is individually selected. This denies the party an opportunity to compare individuals before exercising the challenge. 2 LaFave & Israel, Criminal Procedure § 21.3(d) (1984).
The prevailing practice is for the prosecutor to call and examine the whole number of jurors (six in the Navajo Nation), exercise challenges for cause and peremptory challenges, then replace those excused. At the end of the prosecution voir dire, the whole number of jurors is tendered to the defendant, who then follows the same process. Voir dire continues until the parties have exhausted their challenges or are satisfied with the jury. Id.
In the “struck jury system,” jurors are examined and challenged for cause by both sides, with excused jurors being replaced, until there is a panel composed of the regular number of jurors, plus an additional number to match the number of peremptory challenges available to all parties. This process permits a more intelligent use of peremptory challenges. None of these methods is required, and trial judges have the discretion to determine the order and method in which peremptory challenges may be used. 3 Wharton’s Criminal Procedure § 465 (12th ed. 1975). The rule we set is Navajo trial judges may not require parties to exhaust their peremptory challenges first, before permitting a challenge for cause.
*436II. RIGHT TO COUNSEL
The right to counsel in the Navajo Nation Bill of Rights includes the right to effective assistance of counsel. This right is also guaranteed by the Navajo common law. The traditional Navajo “trial” involved affected individuals “talking” about the offense and offender to resolve the problem. The alleged offender had the right to have someone speak for him. Boos v. Yazzie, 6 Nav. R. 211, 214 (1990). The effectiveness of a speaker (and there could be more than one) was measured by what the speaker said. If the speaker spoke wisely and with lcnowedge while persuading others in their search for consensus, that indicated effectiveness. If the speaker hesitated, was unsure, or failed to move the others, that person was not a good speaker and thus was ineffective. The substance of what was said determined if the speaker was effective. This Navajo cultural standard is stricter than that required by the Indian Civil Rights Act, just as the Navajo courts have gone beyond that Act by appointing members of the Navajo Nation Bar Association to provide pro bono defense services to indigents. See, id. We have examined the record to see how those who spoke for MacDonald acted.
A. The Method of Compensation as a Conflict of Interest
MacDonald’s appellate counsel attacks the conduct of trial counsel (Randall Roberts and Val R. Jolly), essentially saying that their repeated attempts to withdraw from the case and to make an arrangement with the Navajo Nation for the payment of their fees created a conflict of interest, which raised a presumption of ineffective assistance of counsel. The Navajo Nation noted that MacDonald changed his approach at the time of oral argument, by asserting acts of purported incompetence which were not addressed in his brief. Appellate counsel obviously recognized that he must couple the showing of a conflict of interest with actual incompetence. That is, incompetence must be tied to and flow from the conflict of interest. There must be a nexus between a conflict of interest and incompetent conduct of the trial counsel.
The federal constitutional standards to determine ineffective assistance of counsel are outlined in United States v. Cronic, 466 U.S. 648 (1984), and Strickland v. Washington, 466 U.S. 668 (1984). The parties agree that the Strickland standards are dispositive, and there is a good discussion of them in Hall, Professional Responsibility of the Criminal Lawyer § 4.2 (1987). There are performance and prejudice components to the standards, and one of the prejudice components is that “[prejudice may be presumed in some limited situations.” Hall at pp. 64-66. The component which is relevant to this assignment of error is presumptive prejudice in a conflict of interest between an attorney’s financial interest and his duties to the accused.
The first presumption the federal cases require is a “‘strong presumption’ that the conduct of counsel in a criminal case falls within the wide range of reasonable professional assistance or competence.” Hall at § 4.4. In addition, “[pjreju*437dice can be presumed in some limited situations where counsel is totally absent or prevented from assisting the accused or where counsel is burdened by an actual conflict of interest. While prejudice may be presumed, that only satisfies the second Strickland requirement - the first requirement of actual incompetence must be shown.” Id.
We deal with two kinds of conflict of interest - a conflict due to attempts to withdraw for nonpayment of fees, and a conflict because of payment by a third party. We extensively addressed the first conflict in Navajo Nation v. MacDonald concerning Moeller, et al., 6 Nav. R. 222, and most of the argument on this issue is based upon that decision. Professional ethics prohibit financially adverse relations between an attorney and client, and the payment of an attorney’s fee by others creates an inherent danger of a conflict of interest. Hall at §§ 12.11, 12.13. The ethical standard is that an attorney may not be compensated by a third person unless (1) the client consents after full disclosure, (2) the arrangement does not interfere with the attorney’s professional judgment or the attorney-client relationship, and (3) the attorney-client privilege is not violated. Hall at § 6.8.
Even before we affirmed the district court’s denial of their motions to withdraw, the defense lawyers were negotiating with the Navajo Nation to assure their fees. A September 20,1990 letter from Jolly acknowledges a Navajo Nation offer to provide compensation for this case. The letter shows that MacDonald was involved in the process, “because it recites his desire that the Navajo Nation pay his defense lawyers.” The letter asks that the Navajo Nation not be reimbursed from his deferred compensation benefits. Another letter, written the following day, contains the same discussion. Jolly was acutely aware of a possible financial conflict of interest, because he refused to agree to an arrangement for payment from MacDonald’s deferred compensation fund. Obviously, the deferred compensation would be paid “in the foreseeable future” if MacDonald was convicted at trial.
On September 28,1990, two days after our ruling on the motions to withdraw, the trial court entered its order for compensation, based upon the discussions of counsel. It provided that the Navajo Nation would advance fees to Roberts and Jolly, payable on a weekly basis, and that the Navajo Nation had a right of recovery from MacDonald in the future. MacDonald obviously knew what was happening and he went along with the arrangement. He now says in his brief that “he objected vigorously to the ... order,” however, that statement is not supported by the record. There is no conflict of interest here, so the presumption does not arise. There is no showing MacDonald did not consent to the arrangement (other than complain about the eventual possibility of paying the Navajo Nation back for taking care of his responsibility to pay his lawyers), and nothing to show that there was any impairment of the free exercise of professional judgment or the attorney-client privilege.
*438B. The Sealed Motion
Appellate counsel also argues that a sealed document Jolly filed with the trial court on the first day of trial shows a conflict of interest. The document relates to press accounts of MacDonald complaining about the competence of his attorneys. It contains a rebuttal to the press accounts, showing the efforts Jolly and his associates made to prepare for trial. It also shows a specific awareness and concern on their part that MacDonald be given effective assistance. They wanted to make a reliable record of their efforts in the event of later claims of ineffective assistance. While there was some quibbling of counsel at oral argument about whether it was a professional tactic, it was a permissible one. Where a client claims that an attorney is not providing effective assistance, the attorney-client privilege is waived to the extent necessary for a lawyer to defend himself. Hall at § 10.14. Roberts and Jolly were most likely aware that they would be attacked on appeal, and the sealed document was their method of protecting their professional reputations and preserving the record. The trial court and opposing counsel did not know what was in the document, and it had no effect on the jury. The sealed document did not create a conflict of interest.
C. Ineffective Assistance of Counsel
The issue here is whether there is actual incompetence by MacDonald’s defense counsel, considering all the circumstances. The answer lies in making a fair assessment of performance without hindsight, applying the presumption of effectiveness, examining specific errors, and acknowledging the role of strategic trial decisions. Neither the appellant’s brief nor oral argument have shown them, so we have used the other assignments of error as the basis for our examination. They show that MacDonald's attorneys made many strategic and tactical choices, and nothing in the record overcomes the presumption of effectiveness. Strategic choice is the overall plan, or theory of the case, and tactical choices are made as specific problems in a case occur. In the withdrawal case, Roberts and Jolly boasted that they had fifteen years experience prosecuting and defending criminal cases. The trial record shows that, and MacDonald received some very aggressive and competent representation. We find that they spoke for MacDonald wisely, and with knowledge, consistent with a traditional Navajo “talking things out” session. Planning is an important Navajo value, and the record shows the defense was prepared and planned well.
We next decide whether any error or deficiency in defense counsel’s performance was prejudicial to MacDonald. The burden is on MacDonald to show that there is a reasonable probability that, but for unprofessional errors, the outcome would have been different. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. We make this determination on the totality of the evidence as shown by the record, because MacDonald has not pointed to any evidence showing defense counsel’s *439incompetent performance. We have considered both the conduct of trial counsel where there was an exception to a ruling, and rulings where no exception was made. Accepting appellate counsel’s invitation to keep the competence of trial counsel in mind, we find no error and no lack of professionalism which has prejudiced MacDonald. “The last refuge of the convicted defendant is ... based on claims that counsel was ineffective in handling the case. It is a common claim made both by and against even the best lawyers and usually without success.” Hall at § 4.1. MacDonald received effective assistance of counsel.
in. EVIDENCE AND THE QUANTUM OF PROOF
A. Irrelevant and Prejudicial Testimony
MacDonald complains that the testimonies of eight witnesses were “prejudicial and not relevant.” Four witnesses testified on “Rocky” MacDonald’s (defendant’s son) consulting business; specifically, on payments, business dealings and discussions with those seeking or doing business with the Navajo Nation regarding the consulting business. Three witnesses described the tribal leasing and contracting process. The last witness described the operations of the chairman’s office.
MacDonald specifically argues that testimony regarding his son’s business activities had an adverse effect on him. He asks the Court to use the evidentiary prohibition of evidence of “other bad acts” and acts of others to find that the testimony was unfair and prejudicial. Nav. R. Evid. 8(b). The Navajo Nation replies that there was a common scheme between the father and the son, and that evidence of the scheme was permissible under Rule 8(b), which says, “[tjhis subdivision does not exclude the evidence when offered for other purposes, such as a proof of motive, opportunity, intent, preparation, plan, knowledge, or absence of mistake or accident.”
MacDonald was charged with a conspiracy to violate public corruption laws by using his son to obtain consulting contract fees from those who did business with the Navajo Nation, or wished to do business with the Navajo Nation. The theory was that Rocky was an intermediary who pursued arrangements to cut red tape for leases and contracts, or to obtain favorable action for business deals, using his influence with his father. Two facts are important here. MacDonald was the Chairman of the Navajo Tribal Council, and his son was a law school graduate, with knowledge of government contracts. Thejhgory is-indeed viable.
The test is to weigh the probative value of the evidence against the prejudicial effect the evidence would have on those hearing it. Another goal is to determine whether the evidence would “shed some light on the crime charged.” State v. Featherman, 133 Ariz. 340, 651 P.2d 868, 872 (1982).
The evidence of the joint dealings of father and son were very illuminating and probative of the conspiracy alleged against them. It was also probative of the matters permitted in Rule 8(b), Navajo Rules of Evidence. The Navajo Nation was entitled to have its theory of a common scheme to violate public corruption *440laws heard by the jury. Even if there was an abuse of discretion in permitting the testimony, we cannot see how it had any appreciable effect on the jury. Thus, it would be harmless error. United States v. Serlin, 538 F.2d 737, 747 (1976). We see no genuine risk that the emotions of the jury were “excited to irrational behavior,” given the other evidence brought out at trial. United States v. Francesco, 725 F.2d 817 (1984).
MacDonald cannot complain of the trial court’s failure to give a limiting instruction, because he did not request one. The Navajo Nation attributes this failure to trial counsel’s defense tactic of recognizing the common scheme theory and focusing upon a lack of direct threats, coercion or retaliation against those who did not pay or hire Rocky as a consultant. That approach was a central part of the defense theory of the case, used on appeal as well, and it was not an unreasonable defense.
B. Hearsay Testimony
The various legal actions surrounding the trials of MacDonald have made Navajo Nation legal history. The events surrounding his placement on leave from the position of Chairman of the Navajo Tribal Council have prompted legislation, including reforms of the Navajo Nation Government and enactment of a reciprocal code to compel the attendance of witnesses in criminal actions. There has been nationwide litigation over that code, making granting of full faith and credit to tribal laws an important issue. This question arises out of the unique problem of compelling the attendance of witnesses from foreign jurisdictions. We now deal with the issue of using hearsay testimony to relate the knowledge of individuals who could not be brought before the Navajo court.
The hearsay testimonies at issue are those of an F.B.I. agent who testified about her interviews with three officials of the Thriftway Corporation, and the use of a civil deposition transcript of Carl Rowan, an attorney from Washington, D.C. The interviews with Thriftway officials concerned their dealings with MacDonald while seeking to obtain business leases on the Navajo Nation. The deposition recounted MacDonald’s contacts with Rowan to solicit money.
The first hurdle in the analysis of this issue is the right of defendants to confront the witnesses against them. This fundamental right is at the core of the American version of the hearsay rule. The test of when hearsay is permissible is as follows:
[W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.
Ohio v. Roberts, 448 U.S. 56, 66 (1980).
*441Rule 27(a)(2) and (5), Navajo Rules of Evidence, points out that a witness is unavailable, and his statement is admissible, when the witness “[pjersists in refusing to testify concerning the subject matter of his statement despite an order of the judge to do so,” or where the witness “[i]s absent from the hearing and [the] proponent of his statement has been unable to procure his attendance by process or other reasonable means.” In this case, the Navajo Nation aggressively sought the attendance of witnesses from around the United States, using the Uniform Act to Secure the Attendance of Witnesses, 17 N.T.C. §§ 1970-1973 (1989).
On July 2, 1990, the District of Columbia Superior Court refused to enforce Rowan’s Navajo court subpoena under the Act, and the District of Columbia Court of Appeals affirmed the order on August 22, 1990. Rowan was “unavailable” within the meaning of Rule 27(a) (2) and (5). After initially promising the Navajo Nation they would testify, the Thriftway witnesses disappeared, and they could not be located for service of process. They knew the trial was scheduled, and knew they were being sought. The trial court did not abuse its discretion in finding that the Navajo Nation satisfied it burden to show unavailability of the Thriftway witnesses.
The next inquiry is whether the testimony “falls within a firmly rooted hearsay exception.” Roberts, 448 U.S. at 66. Rule 27(b), Navajo Rules of Evidence, permits admission of four categories of hearsay where the declarant is unavailable as a witness. The third exception - “Statement Against Pecuniary or Proprietary Interest” - is applicable here. The parties have pointed out that while our rules appear to be based upon the Federal Rules of Evidence, they often only mirror the subject headings of those rules. That is correct. The Federal Rules may be used to supplement and give guidance to our rules.
The testimony about the Thriftway officials’ statements to the F.B.I. and the United States Attorney’s Office (Arizona) was given under circumstances where pecuniary and penal interests were involved. This hearsay exception is based upon the notion that a person will tell the truth if it hurts his pocketbook or tend to subject the speaker to criminal liability. Either ground satisfies the rule. The statements were made to federal officials in a prosecutorial setting, and they were about dealings between a business with extensive leasing arrangements with the Navajo Nation and one of its officials. The Thriftway officials disclosed their arrangements with MacDonald, and the disclosures could lead to adverse action by the lessor, later controlled by officials other than MacDonald. The trial court also accepted, without abusing its discretion, that because falsified documents were involved, that act would “tend” to subject the Thriftway officials to federal criminal liability for making false statements to a federal official. The F.B.I. agent’s testimony is admissible under Rule 27(b) (3).
While the agent’s testimony was second hand, Rowan’s deposition testimony was first hand. Rowan’s testimony can be admitted either under Rule 27(b) (3), because of potential violations of attorney ethical standards, or under Rule 26(25) - “Statement Used by a Witness at a Prior Hearing Subject to Cross-*442Examination.” Rowan’s deposition was taken as part of civil action No. CV-89-22209, in the Superior Court for Maricopa County, Arizona. That is a civil damage action against MacDonald.
We adopt the approach in United States v. McDonald, 837 F.2d 1287, 1290 (5th Cir. 1988), to consider (1) the nature of the action where the testimony is taken, (2) the strategy or theory of the case in that action, (3) the potential penalties or financial stakes, and (4) the number of issues and parties. We also adopt the approach in Hertz v. Graham, 23 F.R.D. 17, 22, 23 (S.D.N.Y. 1958), that where the issues in a prior trial are substantially the same, and where there was an opportunity for the objecting party to cross-examine the witness, a deposition is admissible in the later proceeding.
The Maricopa County civil action was a suit against MacDonald to recoup monies for the Navajo Nation, and Rowan’s testimony dealt with MacDonald’s solicitation of money from him, when MacDonald was a Navajo Nation official. The civil action arose out of the use of public office for personal gain, to the detriment of the Navajo Nation, and it was designed to assess civil penalties and damages. MacDonald’s stake in that action was to prevent paying damages and penalties for his dealings. The issues were substantially the same, and there was an opportunity for MacDonald to cross-examine Rowan during his deposition. The deposition was properly admitted under our rule.
Finally, there is the comparable guarantees of trustworthiness exception under Rule 27(b)(4), Navajo Rules of Evidence. The district court must find that the tendered declaration is comparable to the other exceptions, and that it is trustworthy. Rowan was unavailable as a witness, because the District of Columbia courts refused to honor Navajo Nation process. The testimony in the deposition was Rowan’s and not of an interviewer who took notes. It was under oath. The deposition had a connection with the criminal prosecution, because the civil action was one of the tools wielded against MacDonald to deal with his activities in office. The district court did not abuse its discretion under this provision of our rules.
C. Proof Beyond a Reasonable Doubt
The Navajo Nation must prove each element of each statutory violation charged beyond a reasonable doubt. The defendant’s innocence is presumed. 17 N.T.C. § 206; Platero, 6 Nav. R. 422, 429 (concurring opinion by Chief Justice Tso). The rules for appellate review of a motion to acquit are set forth in Platero.
The issue is whether, in light of all the admissible evidence, the jury’s verdicts were clearly correct because there was substantial evidence to support them? First, we examine the elements of each criminal statute MacDonald was alleged to have violated to see what must be proved beyond a reasonable doubt and second, we examine the evidence. The statutes which support the judgments in the record are set forth below.
*4431. Bribery in official and political matters, 17 N.T.C. § 360
MacDonald was charged under Section 360(a) (2), which makes it an offense for a tribal official to (1) solicit, accept, or agree to accept (2) any benefit (3) upon an agreement or understanding (4) that his opinion, judgment, exercise of discretion or other action as a tribal official (5) may be influenced. This is an official misconduct or corruption statute, where transactions showing an agreement between a public official and another are often secretive and hidden. The prosecution may use circumstantial evidence to prove any or all of the elements.
2. Conspiracy, 17 N.T.C. § 302
MacDonald was charged under Section 302(a), which defines the offense of conspiracy as (1) the intent (2) to promote or facilitate (3) the commission of an offense (4) by an agreement with one or more persons (5) that at least one of them (6) will engage in conduct constituting an offense, (7) and one of them commits an overt act in furtherance of the agreement. Conspiracy is a broad offense, which covers any conduct by at least two persons to take some action in the commission of an offense. Circumstantial evidence may be used to prove conspiracy.
3. Ethics Code - gifts and loans, 2 N.T.C. § 3753
MacDonald was charged in the alternative, under Section 3753(m) (A) or (C). This provision of the Navajo Nation Ethics in Goverment Code generally prohibits (1) public officials from (2) soliciting or accepting for themselves or another (3) any gift (including an economic opportunity, favor, service, or loan; excluding loans from a regular lending institution, on generally available terms) or other benefit worth $100 or more in any calendar year (4) from any person, organization or group which (Al) has, or is seeking to obtain (A2) contractual or other business or financial relationships or approval from any office with which the public official is associated or employed; or (Cl) has any interest which (C2) within two years, (C3) has been directly involved with, or affected by, the performance or nonperformance of any official act or duty of the official or the official’s office (by association or employment) or (C4) which the public official knows or has reason to believe is likely to be so involved or affected. This complex statute is explained below.
The gist of the prohibited conduct as to those who want to do business with the Navajo Nation is that a public official must not accept anything of the value of $100 or more from them in a given year, if the business wants to get something from the official’s office. This is designed to prevent gifts or benefits to officials who may later be in a position to favor the giver. The gist of the prohibition for those who have done business or gotten benefit from the Navajo Nation within the past two years is that a public official may not accept a gift or benefit where the official, or his office dealt with the giver, or the official knows or has reason to know about the involvement. The statute prohibits the practice of businesses who have done business with the Navajo Nation giving a gift or benefit to influence continued favors. There, the Navajo Nation had to prove the identity of *444the official, the identity of the giver, and the nature of the gift or benefit.
4. Ethics Code - conflict of interests, 2 N.T.C. § 3753
This charge deals with the prohibition that (1) public officials shall not (Al) have direct or indirect (A2) financial or other economic interest, nor engage in employment or an economic activity which (A3) necessarily involves (A4) inherent substantial conflict, or appears to have a substantial conflict (A5) with official responsibilities or duties. 2 N.T.C. § 3753(d)(1)(A). This statute prohibits any conflict of interest, defined as having a direct or indirect interest in an activity which creates, or appears to create, a substantial conflict with the duties of office. It requires proof of an interest or stake in an activity which conflicts with one’s duty to serve the public and not use the public position for personal gain.
5. Ethics Code - abstention from official action, 2 N.T.C. § 3753
Here, MacDonald was charged with separate offenses in the same count. Section 3753(e) (1) (B) requires that (1) when a public official is required to take official action (2) on a matter in which the official has a personal economic interest, (3) the official must first consider eliminating the interest, but if that is not feasible (under another section), (Bl) must abstain from sponsoring, influencing or in any manner attempting (B2) to influence any decision or determination (B3) which would favor or advance the official’s personal economic interest. Section 3753(e) (1) (C) requires a public official with an interest to (Cl) abstain from voting or participating in the decision or determination (C2) unless otherwise directed by the authorized presiding official of the body making the decision or determination (C3) or otherwise required by law, (C4) or unless the official’s vote, position, recommendation or participation is contrary to his personal economic interest.
Subsection (e) (1) (B) prohibits a public official who has a financial interest in a proposed deal with the Navajo Nation from influencing or taking part in a decision which would give him economic benefit. Subsection (e) (1) (C) prohibits an official with an economic benefit from participating in a possibly beneficial governmental decision unless a superior directs participation, or it is required by law, or the official takes a stand contrary to his own interest.
Having reviewed the record and the assignments of error regarding specific transactions between MacDonald and various business entities and business people, we find substantial evidence to support the jury’s verdict on each count. Some of the statutes recited above are technical in their wording, but the prohibitions they contain are clear. One cannot utiltize public office for private gain. The prosecution theory was simple, and the jury was properly instructed on the elements of the offenses described above.
MacDonald was the Chairman of the Navajo Tribal Council, and his son was a law school graduate. There were various contacts with business people where loans, political contributions, gifts, and consulting contract payments to the MacDonalds were discussed, solicited, or concluded. MacDonald was in a position to extend or withhold benefits to those who wanted Navajo Nation business *445or wanted to keep business arrangements with the Navajo Nation. His son was in a position to hold out to people that he could use his lawyer’s skills and relationship with his father to promote or keep business. The evidence clearly shows the passage of monies and other benefits to the MacDonalds, and, without doubt, MacDonald was in a position to benefit or hinder business arrangements.
The evidence clearly shows discussions about economic benefits passing to the MacDonalds from those who did business with the Navajo Nation or wanted to do business with the Navajo Nation. The father and son acted together on several of the arrangements. As mentioned, public corruption cases are difficult, because they require circumstantial evidence to prove the elements of the corruption or ethics statute. The jury, as the body which solely determines the facts under the jury system, was in a position to draw proper conclusions and inferences from the evidence to conclude that the public corruption and conspiracy statutes had been violated. We hold, from a review of the record, that there is sufficient evidence to prove each and every element of the statutes charged, beyond a reasonable doubt.
D. Cumulative Errors
The argument regarding cumulative errors compliments the rule that this Court will cure plain error and grave injustice, but will disregard errors which do not prejudice the defendant and are harmless. The cumulative error doctrine requires reversal of a conviction where the cumulative impact of errors was so prejudicial that the defendant was deprived of a fair trial. State v. Martin, 101 N.M. 595, 686 P.2d 937, 943 (1984).
This was no ordinary case. It involved the expenditure of hundreds of thousands of dollars prosecuting and defending a Navajo Nation public figure. The Navajo Nation obtained experienced legal counsel to prosecute, and MacDonald had equally experienced counsel. The case presented on appeal was thorough, and appellate counsel fully developed each relevant issue. Every conceivable question of law affecting fairness of procedure was presented to the trial court, and it properly addressed each. We have found some errors in the trial of this case, but they are harmless. They do not call into question the essential fairness of a given ruling or cause doubt as to the final outcome of the case.
We hold that MacDonald received a fair trial, and the cumulative effect of errors we found is not sufficient to overturn the jury’s findings of guilt. The jury’s verdict justified the infliction of punishment, so MacDonald is not hurt needlessly. Platero, 6 Nav. R. at 424-425.
Navajos greatly respect their leaders, and MacDonald has been exceptional among Navajo leaders because of his achievements, speaking ability, and the respect he gained from those who chose him, followed him, and supported him. A Navajo leader, however, can be relieved of authority if he betrays the people’s interests. A leader is judged by his actions, and if he has betrayed the public trust placed in him, punishment follows. Lawyers and witnesses “talked” about *446MacDonald in a public place for many days, with people speaking for him and against him. The full story of what he did was made plain and clear, and the six chosen by those who were talking about MacDonald were asked to interpret the story. They found, on behalf of the Navajo people, that public trust and confidence in MacDonald was no longer merited, because he used his leadership position for his own gain and that of his family. Navajo common law criminal procedure was followed.
IV. CRUEL AND UNUSUAL PUNISHMENT
A. Double Punishment Through Multiple Charges
This issue was briefly addressed by the parties. MacDonald says that he received separate sentences for eight counts, when they should have been consolidated into four. He says the effect of refusing to consolidate the counts is double punishment, which is prohibited by the double jeopardy provision of the Navajo Nation Bill of Rights, 1 N.T.C. § 5. The prosecution replies that the statute involved in those counts, 17 N.T.C. § 360(a)(2), prohibits the separate acts of soliciting, accepting, or agreeing to accept any benefit, with the understanding that it will influence a tribal official. Counsel dispute whether we should apply a “same evidence” test or a “same transaction” test. Our guide is Blockburger v. United States, 284 U.S. 299 (1932): “The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id. at 304.
This is a question of statutory construction. We must decide whether the Navajo Nation Council intended to punish separate evils and authorize multiple punishment for official and political bribery when it enacted the Navajo Nation Criminal Code in 1977. The plain language of a criminal statute controls, and any doubt as to the meaning of a penal statute is resolved in defendant’s favor. Platero, 6 Nav. R. at 429.
The plain meaning of this statute is found on its face. The offense is “bribery in official and political matters,” and the two categories of evil the Council addressed were the acts of bribing a public official, and a public official taking a bribe. The subsection MacDonald was charged with violating forbids a tribal official to solicit, accept or agree to accept a benefit, in consideration of that person’s official position. The proof required for soliciting, accepting or making an arrangement or agreement to accept is different. We conclude, given the wording of the statute, that the Council intended the law to punish solicitation, acceptance and agreement separately, and to authorize separate or multiple punishments for each.
Shall a chain of events be punished as one act, or does the goal of prohibiting corruption in public office require that each be punished separately? We conclude that the Council intended that a public official should be punished for each *447separate act of soliciting a bribe, entering into an arrangement or agreement for a bribe and/or actually accepting the bribe. The trial judge was in the best position to assess the chronology and separateness of the transactions when he rejected the defense motion to merge these counts, and his exercise of discretion will not be disturbed on the basis of the conclusory errors assigned on appeal.
B. Cruel and Unusual Punishment
The trial judge gave MacDonald consecutive sentences on various counts, while merging others for the purpose of sentencing. The question is whether he abused his discretion in doing so. We previously dismissed the assignment of error regarding jail conditions because they axe not ripe for review and there is no factual record to support it. Here, we consider whether consecutive sentences are cruel and unusual punishment. The trial court imposed a sentence of 2,160 days imprisonment, 1,800 days labor, and a fine of $11,000. The sentencing statute provides as follows: “When multiple sentences of imprisonment are imposed on a defendant for more than one crime, such multiple sentences shall run concurrently or consecutively as the court determines at the time of the sentence.” 17 N.T.C. § 225 (1977). The words of the statute clearly show that the Council intended to give courts discretionary authority to impose either a concurrent or a consecutive sentence for different offenses.
As a general matter, a criminal sentence is not cruel and unusual punishment as long as it falls within the boundaries set by the legislature. In Ramos v. Pyramid Tribal Court, 621 F. Supp. 967 (D. Nev. 1985), the defendant challenged a consecutive sentence imposed by a tribal court as being violative of the Indian Civil Rights Act, 25 U.S.C. § 1302(7). The federal court noted that consecutive sentences for numerous offenses “is a common and frequently exercised power of judges,” and rejected the challenge. Id. at 970.
We uphold the consecutive sentence imposed in this case. Official corruption in public office is a serious offense, because it robs the Navajo people of their property. Even more seriously, using Navajo culture, it robs the Navajo people of their dignity. We take judicial notice that corruption in public office through bribes, kickbacks, and violations of ethical standards results in poor goods or services, unwise business transactions, losses of public revenue, favoritism to non-Navajos, and a host of other injuries to the public good. Where personal gain sways governmental decisions which should be in the public interest, the benefit to the official almost always causes an injury to the Navajo people. We are not blind to past exploitations of the Navajo people, and the Navajo Nation Council was not blind to them when it enacted both a revised criminal code and an ethics code. The trial judge heard the evidence, and assessed MacDonald’s circumstances in sentencing. Nothing in the record persuades this Court that the sentence was arbitrary, not supported by the evidence, or an abuse of discretion.
MacDonald challenges the labor component of his sentence, arguing that “civilized nations no longer impose sentences of hard labor on their citizens.” We *448take judicial notice that prisoners in confinement in the Navajo Nation jails are not put on rock piles, made to work in chain gangs, or forced to run a treadmill, as has been done in other parts of the United States. Our labor provision comes from the “Law and Order Code” promulgated by the Bureau of Indian Affairs. See, Matter of Application of Chis chilly, 1 Nav. R. 50, 51 (1972). A sentence of labor usually entails community service within the Navajo Nation.
V. CONCLUSION
We have examined the record and the arguments of the parties in light of what the law requires. We have approached our task with respect for leadership and the honor due a public figure. We have assessed the law and evidence as judges, and we have reviewed the “talking” about our former leader as Navajos. We have strived to carry out our duties as required by law. The events which have culminated in this decision have tried us all, but the lesson it teaches is, the Navajo Nation will survive as a government of law, nourished by the values, morals, and ideals of equality and sharing which have made Navajo society unique and valuable.
With all due respect, we find that Peter MacDonald Sr. was found guilty by a jury of his peers, under strict standards of fairness and equity that are inherent in the Navajo common law and required by the Navajo Nation Bill of Rights. Accordingly, the judgments and sentences entered on October 22, 1991 are AFFIRMED, and the Window Rock District Court shall execute the sentences which it has imposed. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502926/ | OPINION
Opinion delivered by
AUSTIN, Associate Justice.
This appeal is from criminal judgments entered against Peter MacDonald Jr. (MacDonald) by the Window Rock District Court on October 22, 1990. They were rendered on an October 17,1990 jury verdict, finding MacDonald guilty of twenty-three counts of conspiracy, aiding and abetting bribery, aiding and abetting violations of the Navajo Ethics in Government Act, and other offenses. MacDonald filed a pro se appeal on November 1, 1990. On April 30, 1991, appointed appellate counsel filed a supplemental brief. The Court heard oral argument on December 9, 1991.
This appeal addresses a series of legal proceedings, beginning with the filing of the initial complaints against MacDonald on December 19, 1989, extensive pretrial motions and hearings, petitions for extraordinary relief to this Court, and a trial which lasted from September 26, 1990 through October 17, 1990. MacDonald’s brief makes twenty-four assignments of error and twenty sub-claims of error. They range from the sufficiency of the criminal complaint to the legality of the sentence, and address many issues in between. They cover so many basic issues of criminal law and procedure that if we wrote a detailed analysis on every claim, the opinion would be over a hundred pages long.
This opinion follows our decision in Navajo Nation v. MacDonald Sr., 6 Nav. R. 432 (1991). Where there are identical issues in that decision and this appeal, we rely upon the discussions of law in MacDonald Sr. We must, of necessity, briefly address many of the issues raised in this appeal.
To impose order on the process, we deal with all the assignments of error in *2broad categories, and combining subcategories under them. MacDonald’s assignments of error are referred to by the Roman numeral assigned in the supplemental appellate brief. The specific issues are summarized in the following general questions:
1. Whether the judge, jury and counsel in the trial of this case were competent, and did they act within their jurisdiction? (Nos. XIII, XVI, XXII, XXIV, XXIII, XVII, XI, XVIII, and XIX)
2. Whether there were errors in court rulings on pretrial matters that denied MacDonald a fair trial? (Nos. Ill, VI, XII, and IV)
3. Whether MacDonald should have been granted an evidentiary hearing to determine if his immunized testimony before a Senate Investigations Committee was improperly used in this case? (No. V)
4. Whether the sentence imposed violates MacDonald’s right against cruel and unusual punishment? (No. XXI)
We vacate the judgments of conviction due to our ruling on assignment of error No. V, the requirement for a pretrial hearing on the use of immunized testimony. Consequently, we will not address issues of evidence and proof, pending a further hearing in the trial court. Assignments of error Nos. I, II, VII, VIII, IX, X, XX, XIV and XV are therefore reserved pending the outcome of that hearing.
I. JUDGE, JURY AND COUNSEL
A. JUDGE DISQUALIFICATION
MacDonald contends that the trial judge, Judge Robert Yazzie, should have recused himself because of ex parte communications and a personal animosity against Peter MacDonald Sr., a co-defendant. MacDonald contends that because his father, MacDonald Sr., once attempted to remove Judge Yazzie from office, he had reasons to exercise animosity against both defendants (XIII).
The right to an impartial judge is an essential element of due process and the basic right of a criminal defendant. McCabe v. Walters, 5 Nav. R. 43 (1985). The standard for the disqualification of a judge is that there must be facts which show bias and prejudice, which influences the judge so that there may not be a fair trial. Estate of Peshlakai, 3 Nav. R. 180 (Shiprock D. Ct. 1981); Toledo v. Benally, 4 Nav. R. 142 (Window Rock D. Ct. 1983). Thus, the facts brought out in the record, consisting of the motion and affidavits of disqualification and any findings by the trial court, must be reviewed to determine whether the court abused its discretion in denying the motion for disqualification.
The record reveals that, for the most part, MacDonald complains of prosecutorial errors or debatable questions of law, and not the conduct of the trial judge. Furthermore, MacDonald does not explain what the ex parte communications are and facts showing animosity are not present. The assignment is conclusive and *3not supported by the record. We must not forget that the jury was the trier of fact, so the ultimate responsibility of determining guilt was not in the judge’s hands. The record does not show, and MacDonald does not demonstrate, that Judge Yazzie expressed any actual animosity towards MacDonald either during the pretrial phase of the case or during the trial itself.
MacDonald Sr. previously sought to disqualify Judge Yazzie on the ground of specific bias, and we held that he caused the circumstances which created the purported bias and could not benefit from his own conduct. In re Certified Questions II, 6 Nav. R. 105 (1989). That rule does not apply to this case. This is a different defendant, but there is nothing in the record to support a conclusion that Judge Yazzie acted in a biased manner towards MacDonald.
B. JURY SELECTION, COMPOSITION AND INSTRUCTION
MacDonald joins his co-defendant in challenging the jury array as not being random or representative of the community (XVI). MacDonald argues that Austin Dawes, a court clerk, selected from voter registration lists “Anglo sounding names” of people living on the reservation in an attempt to “specifically select Anglos.” The irony is that MacDonald challenges the process as excluding Navajos as an identifiable segment of the community. We have held that the array MacDonald complains of here was valid. MacDonald Sr., 6 Nav. R. at 434.
For over a decade, the law of the Navajo Nation has been that non-Navajos will not be excluded from juries. George v. Navajo Tribe, 2 Nav. R. 1 (1979). In 1985, the Navajo Nation Council enacted a statute to provide that “any person” who is eligible may serve on our juries. 7 N.T.C. § 654 (1977). The trial court devised a rational method - the “Dawes Method” - to select a jury containing members who are representative of the population in the Window Rock District. This jury array was composed of both Navajos and non-Navajos. The method was not calculated to exclude any part of that community, including Navajos.
MacDonald asserts that because there was extensive pretrial publicity about this case that the trial court should have taken greater care in conducting the voir dire (examination of jurors for bias), and that it should have conducted in camera (i.e. closed) examinations (XXII). We first note the difference between our system and the federal system, to show that federal precedent does not necessarily apply. As a general matter, voir dire in federal trials is conducted by the judge, with counsel suggesting the questions to be asked. That procedure varies. The general practice in state courts and in our courts is for counsel to conduct the voir dire. The process is free and open, limited by relevance and protection against the abuse of jurors.
While the Navajo Nation argues that the federal cases cited by MacDonald, especially Silverthorne v. United States, 400 F.2d 627 (9th Cir. 1968), were decided using rules “arising from the supervisory authority of federal appellate courts over the [federal] district courts,” and not constitutional or Indian Civil Rights Act issues, jury selection becomes a due process question if the process *4did not provide the defendant a fair opportunity to examine prospective jurors for bias or undue influence. The record shows that the prosecution and the defense addressed pretrial publicity. They had the opportunity to discuss the impact of MacDonald’s televised testimony and the tapes of it which were circulated throughout the Navajo Nation, as well as press accounts of the trial and the turmoil which surrounded the charges. We find nothing in the record which shows that any juror was tainted by pretrial publicity, or that any had a fixed opinion so that he or she could not impartially decide the guilt of MacDonald.
MacDonald says that Joe Figueroa, a member of the jury, purportedly made statements to a newspaper reporter (who in turn told two legal aid attorneys) that he had heard that Peter MacDonald Sr. “had mafia connections and was in the Mafia.” According to MacDonald, that shows Figueroa had a preconceived bias and deceived the court when he stated in his juror questionnaire that he had no preconceived beliefs about MacDonald’s guilt or innocence (XXIV).
The question is whether the trial court, abused its discretion by not probing further into the matter. The court was in a position to assess the affidavits of the legal aid attorneys, which stated what the reporter told them, and to assess whether the information revealed was sufficiently reliable to prompt a hearing. We will not disturb that discretionary decision without a greater showing that what the juror told the reporter, who told the attorneys, was reliable. Some community members enjoy gossip about public figures, and there has been much gossip about MacDonald Sr. and the Mafia. Common gossip, or the possibility a juror may have repeated it, is not a ground to reopen the voir dire process.
True, allegations of juror untruthfulness during voir dire may justify an independent evidentiary hearing. There must be a prima facie case of juror concealment of information, which if disclosed at the time would justify juror disqualification. Here, the statements simply fail to make out a prima facie case. They are too remote, unreliable, and pertain to MacDonald’s co-defendant and not to MacDonald himself. The court did not abuse its discretion.
The gist of the assignment of error on jury instructions (XXIII) is that the instructions on the elements of the offenses charged should have been repeated for each count, so that the jury would be clear about their applicability to each. MacDonald also argues that the instruction on intent should have included a statement that the prosecution must prove intent beyond a reasonable doubt.
The process of instructing a jury is one of the great mysteries of the legal profession. Courts and counsel strive to translate the legalese they use into plain language so that a jury may understand the legal framework for its decision. The danger of repeating the elements of offenses is that the jurors would become confused with a lengthy reading of instructions. In this case, if the court had honored MacDonald’s request on jury instructions, the elements of the various offenses would have been repeated at least sixty times. The jury would have been confused. The goal is to educate jurors, not confuse them. The trial court did not abuse its discretion by not repeating the elements for each count. The contents of *5an instruction on the elements of an offense are within the sound discretion of the trial court. An instruction will be upheld unless it is clearly confusing to the lay person, or it misstates the contents of the offense statute.
The prosecution must prove each element of an offense, including intent, beyond a reasonable doubt. 17 N.T.C. § 206 (1977); Navajo Nation v. Murphy, 6 Nav. R. 10, 15 (1988). The record shows that this jury had a separate instruction on proof of the intent element. We conclude that the jury was properly and adequately instructed on the elements of each offense and the required burden of proof.
C. JURISDICTION OF THE SPECIAL PROSECUTOR
MacDonald attacks the'jurisdiction of the special prosecutor to prosecute him (XVII) by arguing that the Special Prosecutor Act (Act), at 2 N.T.C. § 2021(b) (1989), limits the prosecutor’s jurisdiction to tribal officials. MacDonald has never been a tribal official. MacDonald also argues that because the special prosecutor lacked jurisdiction over him, the prosecutor lacked authority to sign the criminal complaint, and the charges must be dismissed. He cites LaMone v. Navajo Nation, 3 Nav. R. 87 (1982), in support.
We decide these issues using the reasons for passage of the Act. The Act is “an Act to Provide for the Appointment of a Special Prosecutor, and to Establish Such Counsel’s Duties and Responsibilities.” Navajo Nation Council Resolution No. CMA-8-89 (March 1, 1989). Whereas clause number two of the Resolution recites allegations of wrongdoing by “elected and appointed officials of the Navajo Nation.” Section 2021(b) of the Act authorizes the Navajo Nation Attorney General to “conduct a preliminary investigation” to see if any official enumerated in the section had violated a federal, state, or tribal law. These officials referred to include the chairman and vice chairman of the Navajo Nation Council (now president and vice president), their executive staff members, Council standing committee chairmen, the attorney general, directors and deputy directors of agencies and entities, and employees or agents who may have acted with a conflict of interest. If the attorney general finds from the preliminary investigation that there are reasonable grounds for further investigation or prosecution, and there is a conflict of interest by the attorney general or the prosecutor’s office, he or she may apply to the Special Division of the Window Rock District Court for appointment of a special prosecutor. 2 N.T.C. § 2021(e).
The special prosecutor’s authority and duties are in a separate section of the Act. That person has “full power and independent authority to exercise all functions and powers of the Attorney General and the Office of the Prosecutor,” and has specific authority to proceed against “any person or entity” in a civil or administrative action. 2 N.T.C. § 2023(a), (d). The special prosecutor may execute a criminal complaint, despite the provisions of 17 N.T.C. § 1801, regarding who may sign a complaint. 2 N.T.C. § 2023(e). MacDonald’s argument on this issue is therefore without merit. Finally, the special prosecutor has “all necessary and proper power and authority incident to the exercise of his or her other pow*6ers and authority.” 2 N.T.C. § 2023(h). The March 31, 1989 order of the Special Division of the Window Rock District Court, appointing the special prosecutor for this case, interpreted the statute to restrict the prosecutor’s jurisdiction to “any current or former officials listed in the Act at 2 N.T.C. § 2021(b).” Order No. 1(B) (2), In re Appointment of Special Prosecutor of Navajo Nation, No. WR-SD-01-89. The statute, however, is imprecise about whom the special prosecutor can charge, and the special division’s order assumes that charges were limited to public officials.
The Act must be interpreted to accomplish its purpose. The tribal official limitation at Section 2021 applies to the attorney general’s preliminary investigation, and not to the special prosecutor’s jurisdiction. The reason for this section, and for the Act, is to avoid conflicts of interest among Navajo Nation officials. For example, the chief prosecutor may be hesitant to prosecute the president, because he is appointed by the attorney general, who is appointed by the president. An independent counsel would not have the same conflict of interest as the chief prosecutor. Thus, the purpose of the section is to avoid conflicts of interest. It is not a jurisdictional statute.
Once a special prosecutor assumes jurisdiction, the attorney general and chief prosecutor must suspend all investigations “except insofar as such special prosecutor and the Attorney General agree in writing that such investigations and proceedings may continue.” 2 N.T.C. § 2021 (j). That means the special prosecutor may coordinate activities with the Office of the Prosecutor and obtain its assistance for prosecutions, as was done in this case. The record shows that the Office of the Prosecutor acted as co-counsel throughout MacDonald’s trial.
A central concept of the Act, which pervades Section 2021, is that the Navajo Nation needs a special prosecutor where the regular prosecutoral officials of the Navajo Nation have a “personal, financial, or political conflict of interest.” Here, MacDonald is the son of a targeted public official. Conflict of interest provisions often contain prohibitions against family members’ activities as part of the covered official’s conduct, and the same principle applies to this criminal prosecution.
It is also within the spirit and coverage of the Act to uphold prosecutions of those who conspire with or aid and abet covered public officials. As long as rights are protected, scarce tribal financial and judicial resources are better used when all defendants who are charged with these crimes are prosecuted together. Finally, it is important to state that this ruling does not give the special prosecutor free rein to investigate and prosecute people who have absolutely no connection with the Navajo Nation Government or its officials.
D. PROSECUTORIAL MISCONDUCT
Three assignments of error raise prosecutorial misconduct (XI, XX, XIV). We address only (XI) and reserve the other two. MacDonald claims that certain actions of the special prosecutor were so fundamentally unfair that he was denied a fair trial. That is the standard of review.
*7First, there are general accusations of prosecutorial misconduct. MacDonald claims that the special prosecutor deliberately deceived the court in the admission of Exhibit 324. MacDonald says that an earlier version of Exhibit 324 was in existence two weeks before its admission, yet the special prosecutor did not disclose that existence to the defense, which is in violation of the court’s discovery order. The question is, what harm did that cause? Exhibit 324 was a demonstrative exhibit, consisting of a chart of contracts that the Navajo Nation had concluded with persons and entities who or which allegedly paid money or gave benefits to the MacDonalds. The exhibit was prepared by the witness used to introduce it, William Upshaw, the tribal contracting officer. This is not a matter of concealing exculpatory information. The only possible prejudice which could come from the timing of the prosecution disclosure about the exhibit would be the inability of defense counsel to check it for accuracy. That opportunity was available during a recess, if needed. MacDonald also apparently knew several months before trial that Upshaw would be testifying on these contracts. We decline to disturb the court’s interpretation of its discovery order.
MacDonald also alleges misconduct based upon inflammatory remarks during the prosecution’s opening statement. The offending remarks generally referred to the defendant’s lifestyle, opulence and matters which were arguably not proven in evidence. We first discuss opening statements, and then the use of charged language in Navajo courts.
The function of an opening statement is to permit counsel to present their theory of the case to the jury. It is an “opening” statement, because it gives the jury an overview of the case to be presented. Both parties have an opportunity to outline the evidence they will present. The goal is to educate the jury about what it will hear, so they can understand the evidence. The statement is particularly important where the facts of the case may be complex. We reject the view that the contents of the opening statement is limited to a statement of admissible evidence. The Navajo common law principle of “talking things out” is inconsistent with such a view. It permits discussion of inferences which may arise from admissible evidence and a fair presentation of the parties’ theory of the case. Here, the parties dispute whether the prosecution made representations that evidence which would be presented was not. The comments alluded to were not so misleading as to lead the jury astray.
This Court will not tolerate inflammatory language, insults, abuses of people (including judges, counsel, parties or witnesses) or any inappropriately aggressive conduct. There is already enough theatrics, hostility, sharpness, harassment and downright nastiness in non-Navajo courts. On November 1, 1991, our chief justice issued an administrative order adopting a new Code of Judicial Conduct for the Navajo judiciary. It uses Navajo legal values, including the value that trials and hearings shall be civil, and judges now have an ethical obligation to use their *8power to control proceedings and prevent inappropriate conduct in the courtroom. Counsel can expect that if they are discourteous, impolite or abusive, they will be disciplined, either through a contempt citation, court disciplinary action, bar disciplinary action or counseling by the court following a trial or hearing.
The parties disagree about the effect and impact of the remarks made by the special prosecutor. MacDonald contends that they were intended to inflame the passions of the jury and invoke bias against wealth, position and power. The special prosecutor claims that the remarks were necessary to highlight its trial theory that the wealth and lifestyles of the MacDonalds were not supported by their usual income, so they had to be the product of illicit activity. Normally, counsel are permitted great leeway in presenting their arguments to the court or a jury. Here, we specifically disapprove of the comments made by the special prosecutor as shown in the transcript. We, however, cannot conclude that they swayed the jury. There was error, but it does not reach due process proportions, and it is harmless in the sense of ultimate legal harm, and not harm to the process.
E. DEFENSE COUNSEL
MacDonald, in his brief which he attached to his notice of appeal, generally claims that he was denied effective assistance of counsel. MacDonald’s appellate counsel (who were also his trial counsel) also generally make the same claim (XVIII). The grounds alleged in support are as follows: 1) Inadequate time to prepare the defense; 2) Inadequate discovery provided by the Navajo Nation; 3) One of MacDonald’s attorneys (Boos) had a conflict of interest with his employer; and 4) One of MacDonald’s attorneys (Boos) lacked criminal trial experience.
The parties in MacDonald Sr., 6 Nav. R. 432, agreed that the rules applicable to ineffective assistance of counsel issues are found in Strickland v. Washington, 466 U.S. 668 (1984). The rules are these. First, “counsel is strongly presumed to have rendered adequate assistance” to the defendant. Id. at 690. Second, counsel’s actual performance must be deficient. This determination is made after asking, “whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Id. Third, “any deficiencies in counsel’s performance must be prejudicial to the defense.” Id. at 692. Finally, “prejudice is presumed [limited] when counsel is burdened by an actual conflict of interest.” Id.
On the claims of inadequate time to prepare and discovery, MacDonald failed to show he was prejudiced by the alleged inadequacies. The record shows that MacDonald contributed to the time constraints by delaying in applying for appointed counsel. The record does not show that performance or prejudice requirements were breached. There is also the alleged conflict of interest arising from instructions by DNA People’s Legal Services to Boos that he was not to defend MacDonald. That is a separate dispute on the applicability of national Legal Services Corporation restrictions to DNA which we addressed in Boos v. Yazzie, 6 Nav. R. 211 (1990). Using the test that conflicts of interest are meas*9ured by actual performance, we see no actual conflict. Thus, the presumption does not arise.
Boos argues that he lacked criminal trial experience, consequently, he may have provided ineffective assistance of counsel. While he may not have had much prior criminal trial experience, he acquired it, and provided an excellent defense. The twenty-four assignments of error show that the defense was well conceived, well planned, and counsels definitely understood their defense theory. The brief on appeal was well researched, written with precision, and covers basically all objections raised at trial. Boos and his associate, Lawrence Long, did an excellent job and that conclusion is supported by the record.
We are sensitive to appellate counsels’ argument on their inadequacy on appeal (XEX). They say, with reason, that they cannot argue their own inadequacy as a matter of ethics. Again, if counsels think they are “inadequate” in the handling of this appeal, the brief before us and the oral argument presented to the Court belie that modest conclusion. We do not find inadequate assistance of counsel in this record. If, however, MacDonald wishes to pursue the matter further, he may apply to the Window Rock District Court for the appointment of different counsel to relitigate the issue by means of a writ of habeas corpus.
We are aware of the hardship that court appointed pro bono publico defense causes members of our bar. Boos and Long made many sacrifices to defend this case, as did their employers, DNA People’s Legal Services and the Navajo Housing Authority. The price of justice is the sacrifices lawyers make to assure it. But for the unflagging and intense commitment of counsel here, it would have been difficult to assure MacDonald a fair trial. We warn, again, that if it becomes impossible to appoint counsel for indigents, our courts will have no alternative but to begin dismissing criminal charges. Members of the Navajo Nation Bar Association give the Navajo Nation invaluable service when they accept defense appointments.
II. PRETRIAL PROCEDURE
A. ADEQUACY OF THE COMPLAINT
MacDonald relies on Navajo Nation v. Lee, 4 Nav. R. 185 (Window Rock D. Ct. 1983), to attack the sufficiency of the complaints against him (III). That decision applied the due process requirement that defendants must have sufficient information for a fair opportunity to prepare for trial and to assist with their defense. A complaint must be sufficiently specific to permit a defendant to assert the defense of double jeopardy in any subsequent prosecution. Id. at 186.
The adequacy of both civil and criminal pleadings have been the subject of debate since the inception of written complaints. Courts, including Navajo courts, have tended to dismiss criminal charges on technicalities, including inadequate complaints. The modem trend, which we agree with, is to relax pleading requirements because of the availability of discovery.
*10Discovery was available to MacDonald to find out what he must be prepared to meet at trial, so even if the complaint was inarticulately drafted, that was harmless error. We, however, find that the complaint set forth all the substantive elements of the offenses with sufficient clarity so that MacDonald was apprised of the charges he must defend against and to plead double jeopardy, if the need arises. Furthermore, on double jeopardy, this case went to trial, and there is ample documentation to show precisely what offenses MacDonald was charged with, and the facts to support them.
B. SEVERANCE
MacDonald claims he was prejudiced by being tried with MacDonald Sr., because he gave immunized testimony which may have been used against MacDonald Sr. (VI A). We address that testimony later. MacDonald also states that because not all of the charges against both defendants arose out of the same transactions, he was prejudiced by testimony specific to MacDonald Sr. (VIB).
MacDonald was charged as an accomplice to his co-defendant, as well as a co-conspirator, in a pattern and practice of soliciting and receiving bribes. While some of the evidence went to offenses by MacDonald Sr. alone, the bulk of the case involved both defendants. Thus, we find that the charges against the defendants arose out of the same series of transactions. Furthermore, the jury, educated by the arguments of counsel and the instructions of the court, was sufficiently able to separate the charges against the defendants as they pertained to each alone.
C. PRETRIAL DISCOVERY
MacDonald makes broad and conclusive statements about inadequate pretrial discovery, including assertions that the special prosecutor “did nothing” to aid discovery, and there was inadequate time to prepare for trial (XII). The time problem was cured by intensive defense preparation and MacDonald has not shown prejudice. The record also does not show any limitation on MacDonald’s ability to do pretrial discovery.
MacDonald specifically claims that the special prosecutor failed to disclose immunity agreements between the federal government and Terry Hamilton of Thriftway, and if disclosed he could have used them to cross-examine Linda Bateman. MacDonald also says that the failure to disclose is concealment of exculpatory evidence (XI g). The argument on the immunity agreements is that had they been disclosed, the defense could have attacked the hearsay declarations of the immunized declarant as not being against penal interest. We have held that they were also declarations against pecuniary interest and separately admissible on that ground. MacDonald Sr., 6 Nav. R. at 441-442.
The Arizona federal district court stated that “[wjhether the failure to disclose the fact of Hamilton’s use immunity would have created a reasonable doubt of MacDonald’s guilt on any count of which he was convicted is a matter for the *11tribal court to decide.” In re Grand Jury Investigation of MacDonald, No. G.J. 89-2, at 4 (D. Ariz. December 3, 1990). The discovery information complained of is not a fact which is relevant to MacDonald’s innocence on a given count. It is an evidentiary point only, where the information would have been used to attack testimony which was admissible on another ground. Where a trial court’s ruling is sustainable on another, independent ground, there is no prejudice.
There are also related due process and equal protection claims. They are that while the Navajo Nation had two years to prepare its case, MacDonald had only forty days; that he had to wait for appointed counsel for five months, and counsel was appointed only forty days before trial. MacDonald contributed to delay by refusing for five months to follow the court’s instruction to apply for appointed counsel and to show he was indigent. When that information was provided, counsel was appointed immediately. Even if there was some fault in not appointing counsel, the time period of appointment before trial is comparable to appointments in the federal and state systems.
D. SPEEDY TRIAL
MacDonald claims that he was denied his right to a speedy trial, as guaranteed by the Indian Civil Rights Act, 25 U.S.C. § 1302(6), and the Navajo Nation Bill of Rights, 1 N.T.C. § 7 (IV). The complaint was filed on December 19, 1989, and MacDonald was arraigned on March 12,1990. Nine months passed between arraignment and trial, and trial commenced on September 26,1990; six and one-half months after arraignment. The parties rely upon Navajo Nation v. Bedonie, 2 Nav. R. 131 (1979).
Bedonie adopted a four-factor test to determine whether an individual’s right to a speedy trial had been denied. They are (1) the length of delay; (2) the reason for delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant. We amplify that test by adopting the rule that “the right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.” United States v. Ewell, 383 U.S. 116, 120 (1966).
The delay was not excessive considering the circumstances of this case. This case was a massive undertaking, hampered along the way by motions and appeals. MacDonald Sr.’s retained counsel attempted to withdraw, appointed counsel attempted to withdraw in this case, witnesses litigated the validity of witness process for the trial all around the United States, and there was a civil action associated with the criminal action against MacDonald Sr. The trial court attempted to balance the needs of the prosecution and the defense with the need for swift justice. As a matter of law, the six and one-half months from arraignment to trial in this case does not rise to a presumption of prejudice.
Much of the delay was attributable to the prosecution’s needs and those of the co-defendant. However, we include delay which is attributable to MacDonald. He was arraigned on March 12,1990, and it was not until August 3,1990 that he *12applied for appointed counsel. The trial court was concerned about MacDonald’s right to counsel, even though he was a law school graduate. That concern is reflected in several portions of the record.
One of the inherent powers of a court is the power to control proceedings. Navajo courts are sensitive to the speedy trial right of defendants, and they balance it against the right for a sufficient time to prepare the defense. While it is true that most criminal trials in Navajo courts are completed in far less time, some cases are so aggressively defended that pretrial proceedings necessarily delay trials. This is one of them. The trial court did not abuse its inherent power.
MacDonald was not prejudiced by any delay caused by the prosecution of his co-defendant. There is no indication that evidence was lost, memories were dimmed, defense witnesses disappeared or the defense was impaired. MacDonald was not confined pending trial, and while anxiety and concern are valid components of prejudice, they must be balanced with the right of the parties, the court and the public to an orderly trial. Order comes from adequate and proper preparation for the event, so we find no denial of the right to a speedy trial.
III. IMMUNIZED TESTIMONY
We sustain the assignment of error (V) regarding the trial court’s failure to hold a hearing on the possible use of MacDonald’s immunized testimony against him, directly or indirectly. Our reasons are grounded in the facts of the case.
In October 1987, the Arizona Republic published a series of articles about the state of American Indian Affairs policy, including corruption by both Indians and non-Indians. In February 1988, the United States Senate established the Special Committee on Investigations to investigate the federal government’s relationship to Indians. Special Committee on Investigations, Final Report and Legislative Recommendations No. 101-216 at 225 (101st Congress, 1st Session, November 20, 1989).
There was an extensive staff investigation, and several witnesses invoked their right against self-incrimination during depositions. They received limited use immunity for the testimony they gave. Id. at 230-231. The committee report notes that “[ajlthough it does not bar criminal prosecution of the compelled witness, use immunity imposes on the prosecutor the burden of demonstrating that the government’s evidence is not based on or derived from information obtained during the immunized testimony.” Id. at 231.
During the oversight hearing phase, the committee heard live testimony. The testimony about the Navajo Nation is summarized in the report as follows:
With an introduction from private contractors, the hearings on corruption among elected officials of tribal governments commenced in full on February 6, [1989], including as witnesses the son of the Chairman of the Navajo Nation, Peter MacDonald, Jr. The principal witness the next day, Bud Brown, told the Committee of his business dealings with Chairman MacDonald and the development of the perjurious cover-story fabricated by the Chairman. *13Excerpts of surreptitious tapes were played and blow-ups of profit agreements and checks, as well as other documents, were used to substantiate the testimony. To close the day, the Committee heard from Dr. Annie Wauneka, a respected leader of the Navajo Nation.
Id. at 232.
The report also states as follows: “The hearings received daily coverage in the news media, including regular reports by The Washington Post, The New York Times, The Arizona Republic and Associated Press, as well as extensive gavel-to-gavel coverage by the Congressional Satellite Public Affairs Network (C-SPAN).”M
People within the Navajo Nation learned of MacDonald’s revelations through area newspapers and videotapes which were shown in the Navajo Nation. The details of the “corruption among tribal governmental offacials,” and particularly Navajo Nation officials, are found in seventeen pages of the committee’s report. Id. at 181-198. Copies of the report were widely circulated among tribal leaders and interested people in Indian Country. MacDonald also spoke in interviews with the committee staff, the Federal Bureau of Investigation and the United States Attorney for Arizona.
This is the background which frames the issue. Not only did MacDonald give immunized testimony, but it was on television, and in newspapers and magazines around the world. Even the senate committee recognized that any prosecution would require a demonstration “that the government’s evidence is not based on or derived from information obtained during the immunized testimony.”
The due process clause of the Navajo Nation Bill of Rights, 1 N.T.C. § 3, required the special prosecutor to prove to the trial court, in an adversary hearing, that the evidence it used in preparing its case and the evidence offered at trial were not based on or derived from the information MacDonald gave to any official under either a formal or informal grant of immunity. The basis for this holding is simple. The right against self-incrimination is fundamental. An individual must not give information to be used for his or her own punishment unless there is a knowing and voluntary decision to do so. An individual cannot be compelled to give that information unless there are safeguards and assurances that it will not be used to develop a criminal case or be used in some way to prove that case. The safeguards are provided in Kastigar v. United States, 406 U.S. 441 (1972).
This is also a Navajo principle. Navajo common law rejects coercion, including coercing people to talk. Others may “talk” about a Navajo, but that does not mean coercion can be used to make that person admit guilt or the facts leading to a conclusion of guilt. Navajos often admit guilt, because honesty is another high value, but even after admitting guilt, defendants in Navajo courts are reluctant to speak.
We will not outline the hearing procedure in detail, because the judgments against MacDonald will be vacated and the case will be remanded to the trial court for the required hearing. However, when a defendant shows that he has testified under immunity, and that testimony is related to a criminal prosecution *14against him, the prosecution has a burden to show that its evidence is not based on, or derived from, immunized testimony. Id. at 460. The prohibition extends to direct and indirect use, including leads derived from the testimony. Id. The prosecutor’s burden of proof is a heavy one, which “is not limited to negation of taint.” Id. “[I]t imposes on the prosecution the affirmative duty to prove that the evidence is derived from a legitimate source wholly independent of the compelled testimony.” Id. The goal of the process is to ensure that a witness who is compelled to give imminized testimony will not suffer, and that the defendant is in the same position as if he or she had remained silent. Id. at 461. Kastigar will be used to guide the hearing procedure.
Everyone in the Navajo Nation was bombarded with the news of MacDonald’s testimony before the Special Investigations Committee. The special prosecutor worked closely with the Federal Bureau of Investigation and the United States Attorney to coordinate investigation and prosecution. Even if there was the “Chinese Wall” the special prosecutor insists was there to prevent any seepage of incriminating information, the trial court should have held a hearing to ensure that the wall had no cracks in it.
The Senate Special Investigations Committee sought evidence of corruption among tribal leaders and challenged the Navajo Nation to take care of its problems. The financial, personal, emotional and public cost of that challenge has been great, but the rights of this defendant are paramount. There is a lot of discussion of the Oliver North case and his eventual freedom from criminal liability, due to his testimony during the Iran-Contra hearings. Not only are the principles of his or other cases relevant to what we decide today, but they are principles which we accept, in the interests of justice.
IV. CRUEL AND UNUSUAL PUNISHMENT
MacDonald admits that “the stacking of six month sentences by a court may not, by itself, constitute cruel and unusual punishment.” Even without that admission, we have held that the consecutive sentences, which are permitted by Navajo statute, are not cruel and unusual, because they are within the limitations fixed by the Navajo Nation Council. MacDonald Sr., 6 Nav. R. at 447.
As it was with our ruling in MacDonald Sr., we will not decide whether extensive confinement in the Window Rock jail is cruel and unusual punishment. The facts which show the conditions in that facility are not before us, and we do not know if that will be MacDonald’s ultimate place of confinement. We also note that our ruling on the review of immunized testimony may effect whether or not MacDonald is ever confined.
V. CONCLUSION
The judgments entered by the Window Rock District Court on October 22, 1990 are VACATED, and the case is remanded to that court for the required hearing consistent with this opinion. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502927/ | OPINION
Opinion delivered by
BLUEHOUSE, Acting Chief Justice.
This is an original action for a writ of prohibition. The question is whether a trial court decision denying a motion for continuance may be challenged by a petition for extraordinary writ which addresses jurisdiction.
I
The underlying action involves a charge of disorderly conduct which is pending in the Ramah District Court. On November 4, 1991, the defendant pleaded not guilty and demanded a jury trial. On December 13, 1991, Judge Irene Toledo was disqualified from the case, and Judge Leroy Bedonie assumed the case. On February 1, 1992, defense counsel received a notice of jury trial setting for February 20, 1992. Defense counsel claims that he previously advised the court clerk that he had a hearing scheduled in Crownpoint Family Court on February 20, 1992 and despite that information, the court clerk set the hearing in the Ramah District Court for that day. Defense counsel obviously cannot be in two places at once. On February 3, 1992, the defendant moved for a continuance. It was denied, and the defendant now seeks a writ of prohibition to prevent the jury trial from proceeding on February 20th in the Ramah District Court.
Our all writs statute, 7 N.T.C. § 303 (1985), gives the Navajo Nation Supreme Court jurisdiction “to prevent or remedy any act of any Court which is beyond such Court’s jurisdiction, or to cause a Court to act where such Court unlawfully fails or refuses to act within its jurisdiction.” The remedy for decisions which are not within a court’s jurisdiction is the writ of prohibition, and the remedy for any failure to act within jurisdictional authority is a writ of mandamus.
One of the inherent powers of a trial court is to regulate proceedings, including trial settings. The grant or denial of a motion for continuance is within the *16sound discretion of the trial judge, and we will review the denial of a motion for continuance only where there has been shown a clear abuse of that discretion. The record here does not show how Judge Bedonie abused his discretion in denying the motion for continuance, nor does the petition set out facts which would show any violation of due process under the Navajo Nation Bill of Rights. This Court will intervene in discretionary matters only where there is a denial of fundamental rights so that not to intervene would cause a grave injustice and result in an extra jurisdictional act. In other words, we will not intervene in procedural matters prior to trial unless petitioner can show that fundamental rights are being denied. Otherwise, litigants have a remedy by appeal.
In addition, the petitioner failed to provide the Court with a copy of the motion for continuance, as is required by Rule 26(a), Navajo Rules of Civil Appellate Procedure. The petitioner has also failed to attach a copy of the notice of hearing showing the prior setting in Crownpoint Family Court. If a party asserts that there has been an abuse of discretion, we must have before us what the trial judge had before him. Extraordinary writs are de novo proceedings which require a second look at what was before the trial judge.
The petition is DISMISSED. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502759/ | ORDER DISMISSING APPEAL
The Appeal in the above-entitled matter, filed the 23rd day of May, 1977, having been received and considered by the Chief Justice pursuant to 7 N.T.C. Section 451, the Court finds:
1. The District Court of the Navajo Nation, Judicial District of Tuba City, vacated the contempt order appealed from on June 15th, 1977.
2. The case is now moot as there is no appealable order.
Therefore, the appeal in the above-entitled matter is hereby DISMISSED.
Dated this 20th day of June, 1977.
Virgil L. Kirk, Sr. Chief Justice Of The Navajo Nation | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502760/ | ORDER DISMISSING APPEAL
The Notice of Appeal in the above entitled matter having been received and considered by the Chief Justice pursuant to 7 N.T.C. Section 451, the court finds:
1. That the Order filed herein with the Notice of Appeal is not the final judgment order;
2. The rights of the defendants are not prejudiced by having the matter adjudicated on the merits, with the jurisdictional objection entered on the record. The proper time to appeal is after a final judgment on the merits has been entered, there being no provison for interlocutory appeal under the Navajo rules of appellate procedure.
Therefore, it is ORDERED that the Appeal filed herein be and hereby is DISMISSED.
*246Dated this 2nd day of May, 1977.
Virgil L. Kirk, Sr. Chief Justice Of The Navajo Nation | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502761/ | ORDER DISMISSING APPEAL
The Request for Appeal in the above-entitled matter having been filed the 31st of March, 1977, and Appellant having faded to file her supporting brief by April 25, 1977, the time period so allowed, the Request for Appeal is hereby DISMISSED.
Dated this 10th day of May, 1977.
Virgil L. Kirk, Sr. Chief Justice Of The Navajo Nation | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502762/ | ORDER DENYING WRIT OF PROHIBITION
The request for a Writ of Prohibition in the above-entitled matter having been received and considered by the Chief Justice, the Court finds:
That good and sufficient cause has not been shown for the motion before the Court of Appeals to disqualify the judge presiding in the above-entitled case. Therefore, the motion is hereby DENIED.
*249Dated this 17th day of February, 1977.
Virgil L. Kirk, Sr. Chief Justice Of The Navajo Nation | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502764/ | ORDER DISMISSING APPEAL
The appeal in the above entitled matter filed the 19th day of June, 1978, having been received and considered by the Chief Justice pursuant to 7 N.T.C. Section 451, the Court finds:
1. 7 N.T.C. 172 and Rule 2(e) of the Rules of Appellate Procedure provide that there shall be no appeal in any criminal case in which the defendant was sentenced to less than fifteen (15) days imprisonment and 60 days probation is less than 15 days and/or $26.00.
Therefore, the appeal in the above-entitled matter is DISMISSED.
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https://www.courtlistener.com/api/rest/v3/opinions/8502765/ | ORDER DISMISSING APPEAL
The appeal in the above-entitled matter, filed the 3rd day of May, 1978, having been received and considered by the Chief Justice pursuant to 7 N.T.C. 451, the Court finds:
1. The appellant faded to comply with Rule 5(d), Rules of Appellate Procedure which states that no appeal shall be heard unless the appellant has filed a Motion for Reconsideration with the District Court,
2. The filing of a Motion for Reconsideration subsequent to the appeal is not compliance with Rule 5(d).
Therefore, the appeal in the above-entitled matter is DIS*254MISSED,
The Stay of Execution, issued the 3rd day of May, 1973, is hereby VACATED.
Dated this 14th day of July, 1973.
Marie F. Neswood Acting Chief Justice Of The Navajo Nation | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502928/ | OPINION
Opinion delivered by
AUSTIN, Acting Chief Justice.
I
This matter comes before the Court as two certified questions from the Window Rock District Court. The first asks, “Which court hears appeals from final judgments rendered in small claims proceedings?” The other asks,”What is the time period within which a party aggrieved by a final judgment in a small claims proceeding must file its appeal?” We hold that the Navajo Nation Supreme Court is the only court that may hear appeals from final judgments rendered in small claims proceedings, and that the deadline for filing such appeals is as stated by Rule 8(a) of the Navajo Rules of Civil Appellate Procedure.
II
The original dispute below apparently centers on the ownership of a cow found in the grazing range of the plaintiff, Billy Williams, by the defendant, Jackson Yazzie. Yazzie filed a small claims suit in the Window Rock District Court, and on September 17, 1990, that court ruled that the cow must be turned over to Yazzie.
Williams then filed a new complaint in the Window Rock District Court, apparently contesting the judgment rendered by the court in the small claims proceeding. We accepted the two certified questions submitted by the district court. These questions are as follows:
1. Which court hears appeals from final judgments rendered in small claims proceedings?
2. What is the time period within which a party aggrieved by a final judgment in a small claims proceedings must file its appeal?
*18III
Only the Navajo Nation Council can create a new court and give it jurisdiction. 7 N.T.C. § 201 (1985). Order No. SCF-02-90, Adopting the Rules for Small Claims Proceedings, was issued by this Court on February 27, 1990, pursuant to 7 N.T.C. § 601(a) (1985). That section authorizes the Navajo Nation Supreme Court to “adopt rules of pleading, practice, and procedure applicable to any or all proceedings in the Courts of the Navajo Nation.” Thus, a new court of the Navajo Nation with separate jurisdiction could not have been created by our Order. Instead, the small claims proceedings is a proceeding of the existing trial courts, the Navajo Nation District Courts. 7 N.T.C. § 103 (1985). The purpose of this proceeding is to reduce litigation costs and to expedite resolution of disputes over money, by allowing parties to present their own cases using simplified procedures.
The right of appeal from a small claims judgment is limited to grounds that substantial justice was not done between the parties. Rule for Small Claims Proceedings No. 20. The district courts are not given appellate jurisdiction under Title 7 of the Navajo Nation Code, and certainly have no jurisdiction to hear appeals of their own judgments. As small claims judgments are determinations of the district courts, appeals from such judgments may be heard only by the Navajo Nation Supreme Court. 7 N.T.C. § 302 (1985).
The deadline for filing appeals of judgments rendered through small claims proceedings is the same as that for all other district court civil proceedings under Navajo Rules of Civil Appellate Procedure 8(a) — within thirty days of the entry of judgment, or ninety days if the appellant dies before the thirty days expire. See also 7 N.T.C. § 801(a) (1985).
As a final note, the case below belongs in small claims proceedings only if a sum of money is involved. Rule for Small Claims Proceedings No. 1. If this dispute involves a cow, as both parties indicate in their briefs, then the suit must be dismissed. The Navajo Peacemaker Courts are particularly appropriate for disputes of this nature. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502929/ | OPINION
Opinion delivered by
AUSTIN, Acting Chief Justice.
Nasbah C. Yazzie (Yazzie) appeals an Order of the Window Rock District Court establishing the eastern boundary of Edward Nelson Catron’s (Catron) livestock grazing use area. We hold that Yazzie lacked standing to challenge the determination of the boundary by the district court. The district court’s order is affirmed.
I
This case arises from a longstanding dispute over the division of the estate of Sam Catron Jr., the brother of Catron and the half-brother of Yazzie. Sam Catron Jr. died without a will, leaving an estate consisting solely of a grazing permit for twenty sheep units that he had received as a gift from the parties’ father, Sam Catron Sr. The division of the estate of Sam Catron Sr., which consisted entirely of an agricultural use permit, was made according to his will and is not an issue in this appeal.
The district court’s most recent order, appellant’s opening argument at trial, and both appellate briefs characterize this case as a dispute over the estate of Sam Catron Sr. However, the district court’s Stipulation, Agreement, and Orders (Agreement), filed by the parties on May 7, 1982, clearly established that Sam Catron Sr. gave away his grazing permit before dying. The dispute in this case arose from the intestate distribution of Sam Catron Jr.’s share of that grazing permit following his own death. The estate of Sam Catron Sr. is not at issue.
When the parties filed the Agreement in 1982, they intended to resolve disputed issues in the distribution of both estates. The Agreement divided the agri*20cultural use permit conveyed in the will of Sam Catron Sr. equally between the parties and directed them to obtain a survey confirming the boundary dividing the area. It also divided Sam Catron Jr.’s twenty-unit grazing permit, giving seven units to Yazzie and thirteen units to Catron. Finally, the agreement divided the customary use area which Sam Catron Jr. had shared with Yazzie at the time of his death and established the boundaries of the portion that would pass to Catron for his grazing use area. The district court approved the agreement and issued an order directing the parties to file their respective permits, surveys, designated land use areas, and fencing applications necessary to implement the Agreement within 90 days. Neither party complied with the order.
On April 10, 1987, Yazzie filed a motion to terminate Catron’s rights to the grazing and agricultural use permits divided by the Agreement. On May 31, 1989, following a hearing, the district court directed the Bureau of Indian Affairs Branch of Land Operations, assisted by the District 18 Grazing Committee, to prepare a survey of the grazing area to determine the boundaries established by the Agreement. The court noted that all other disputes arising out of the Agreement had been resolved.
The Bureau of Indian Affairs was unable to complete the survey and instead submitted an interpretation of the Agreement made using an aerial photograph. Yazzie objected to the BIA’s interpretation and on February 20,1991, the district court held a final hearing to resolve the dispute. At the time of the hearing (and this appeal) only the eastern boundary of Catron’s grazing area was in dispute. Paragraph 33 of the Agreement stated that, “The eastern boundary line of the Edward Nelson Catron designated grazing area would be designated as the western side, existing at this moment in time, of an arroyo which passes along the Black Rock immediately west.” Yazzie argued that the Black Rock in question was roughly one and a half miles southwest of the agricultural use area and not the one immediately adjacent to it as argued by the BIA and Catron.
Use of the wrong Black Rock, she argued, would expand Catron’s grazing use area to encompass her children’s homesite leases. In reaching its decision, the district court relied on the text of the Agreement and heard testimony from the BIA, Catron’s attorney at the time of the Agreement, Yazzie and two of her children. The court established the eastern boundary of Catron’s grazing use area as the existing livestock grazing management unit fence almost parallel to the first arroyo located west of the Black Rock closest to the area in question. This boundary conformed with neither party’s position, but used the Black Rock preferred by Catron. The district court further ruled that the grazing use area would exclude all existing homesite leases within the area’s boundaries and that the right of egress and ingress to the homesite leases would not be obstructed.
*21II
The May 7, 1982 Agreement between the parties, while ambiguous in some of its terms, clearly settled a number of issues. First, it divided Sam Catron Sr.’s agricultural use area equally between the parties and established the boundary between each one’s half. Agreement at 8. Second, it established a line dividing the customary use area previously shared by Yazzie and Sam Catron Jr. into two separate grazing areas, one for the estate of Sam Catron Jr. and one for Yazzie. Agreement, paragraphs 21 and 22 at 6, paragraph 30 at 9. This line, in turn, was designated as the northern boundary of Catron’s grazing use area. The southern and western boundaries were designated as the existing range management fence. Agreement, paragraphs 31 and 32 at 9. The northern, southern and western boundaries are not in dispute. Finally, the Agreement divided Sam Catron Jr.’s grazing permit, giving Catron thirteen sheep units and Yazzie seven. It provided that Catron’s units were to be grazed on the land designated by the Agreement as his grazing use area while Yazzie’s were to be added to her existing permit. Agreement, paragraph 36 at 10. The only issue in dispute at the time of this appeal (and the latest two district court hearings) was the location of the eastern boundary of Catron’s grazing use area.
In Estate of Wauneka Sr., this Court discussed the difference between private ownership of land, usually off the reservation, and use and occupancy of reservation land traditionally inhabited by a person’s family, known as a customary use area. 5 Nav. R. 79, 81 (1986). The great majority of the Navajo reservation is trust land, including the area in dispute. Trust land cannot be owned by individuals outright (“in fee”) the way land is owned off the reservation. Rather, the actual title to trust land is held by the United States government in trust for the Navajo people. The Navajo people use trust land for livestock grazing, agriculture, homesites, herb gathering, and sacred purposes. The Navajo Nation government grants permits for agricultural use within irrigation project areas and for livestock grazing across the reservation. It also grants homesite leases throughout the Navajo Nation. Navajos use their customary use areas for small agricultural plots, homesites, and grazing.
Livestock grazing is not allowed on Navajo trust land without a valid grazing permit. 3 N.T.C. § 781. Such a permit allows its holder to own livestock and to graze that livestock on Navajo trust lands to which he or she has use rights. No one can hold a grazing permit unless he also holds use rights to land sufficient to support the livestock authorized. A grazing permit alone does not give its owner the right to use land. A permit holder must also have use rights to a particular piece of land in order to keep and exercise his or her permit. Such rights are most frequently held as a customary use area on land occupied by the permit holder’s family in previous generations. A grazing permit can be sold, inherited or otherwise transferred and can be sub-leased to anyone eligible to receive it through inheritance. All such transfers and subleases are subject to the approval of the *22District Grazing Committee and the Agency Superintendent. 3 N.T.C. § 784, 786. Unless a Navajo has a grazing or agricultural use permit, a homesite or business lease, or rights to a customary use area, he or she has no rights or interest in trust land beyond those of every other member of the Navajo Nation.
The Agreement’s description of the decedents’ rights to land is consistent with Navajo land use. Regarding Sam Catron Sr., the Agreement states, “He has no other entitlement to land, such being contingent upon the grazing permit, which is an entitlement to use the surface of a designated area for the grazing of livestock....” Agreement at 5. Similarly, “the Grazing Permit of Sam Catron, Jr. entitled [him to] the use of the surface rights of the customary use area.” Agreement, paragraph 21 at 6. When Yazzie made the Agreement, she accepted the division of the customary use area she had shared with Sam Catron Jr. before his death and the separation of her own customary use area from his estate’s. When Yazzie agreed to add her seven units of Sam Catron Jr.’s grazing permit to her already existing 140-unit permit being used on her customary use area, she ceased to have any rights to his share of the customary use area they had previously shared. Without grazing rights to it, she had no interest in his share of the customary use area. Of the two parties, only Catron, to whom the Agreement gave thirteen units, had rights to Sam Catron Jr.’s share of the customary use area. The Agreement established a boundary between Yazzie’s share of the customary use area and Sam Catron Jr.’s share. That boundary was declared the northern boundary of Catron’s grazing area and became the southern boundary of Yazzie’s. Yazzie gave up any rights she may have had to a share of Sam Catron Jr.’s portion of the customary use area. Those rights became Catron’s.
Yazzie claimed at trial that she opposed Catron’s interpretation of the grazing area boundary because if it was adopted she would have nowhere to exercise the seven unit grazing permit she had received from her brother’s estate. However, Yazzie never claimed nor presented any evidence that her share of the customary use area was insufficient to support seven sheep units in addition to the 140 units she was already grazing. In fact, she had already agreed to add her inherited units to her existing grazing permit, now used north of the area in dispute. Having done so, she lost her standing to contest the boundaries of Catron’s customary use area before the district court. Yazzie would not have received any additional use rights if her proposed boundary had been adopted, nor did she lose any when the court adopted the boundary it did. She has no standing to interfere in a matter in which she has given up her interests.
Yazzie argued in her brief that according to Anglo-American contract law the boundary should be set according to the “plain meaning” of the Agreement. In this case, however, Yazzie had no right to contract with Catron over the latter’s grazing area. Thus, the determination of the boundary was a matter between Catron, the District 18 Grazing Committee, and the district court. 3 N.T.C. § 708. Yazzie, like any other Navajo in the community, had the right to express her opinion on the location of the boundary, but that right did not extend to con*23tracting with Catron to override the grazing committee’s or the district court’s determination of the proper boundary nor to bringing an action challenging that determination.
In reality, Yazzie may have pursued this action to protect her children’s home-site leases which are within the district court’s boundary of Catron’s grazing area. The court, however, made provisions for those leases, ruling that valid homesite leases are excluded from the grazing area and are guaranteed free access by the leaseholders. Failure to obtain the agreement of Catron to such leases prior to this decision shall not affect their validity.
Ill
We base our decision in this case on Yazzie’s lack of standing to challenge the boundary of Catron’s share of the customary use area. However, even if we had chosen to base our decision on a review of the district court’s interpretation of the Agreement, we would have affirmed its determination.
This dispute has gone on for more than a decade. Like many land disputes, particularly among family members, it has been both complicated and emotional. It would have been better addressed in a non-adversarial proceeding more consistent with Navajo tradition, such as is available in the Peacemaker Court. Nonetheless, the district court reached its decision only after careful consideration of the facts as shown by testimony and documents introduced at the hearing. The district court is in a far better position to evaluate the evidence in such cases than we are. Therefore, unless the district court’s decision was clearly erroneous or not supported by the facts proven, it should be affirmed.
The dispute in this case hinged on which black rock and accompanying arroyo were referred to in the May 2,1982 Agreement between the parties. The trial court implicitly rejected Yazzie’s claim that the black rock referred to was approximately one to one and a half miles south of the range management fence which forms the undisputed southern boundary of Catron’s grazing use area. Instead, based upon testimony from the area’s Bureau of Indian Affairs Natural Resources Manager and Catron’s attorney at the time of the Agreement, the court found that the natural landmark used to establish the grazing area’s eastern boundary was the Black Rock adjacent to Catron’s agricultural use area and nearest to the Red Lake dam. It relied on paragraph #35 of the Agreement which specified the size of the grazing use area and corresponded with the size of the area reached using Catron’s preferred black rock to establish the boundary. While the district court may have been interpreting the Agreement to establish the eastern boundary, the Agreement was also evidence of the parties’ knowledge and understanding of the boundaries of the customary use area belonging to the estate of Sam Catron Jr. The court rejected the claim that using the Black Rock next to the agricultural use area to establish the boundary would deprive Yazzie of the use of her seven unit permit, finding that she could add those units to her existing permit.
*24In choosing the rock closest to the area in dispute to establish the boundary, the district court selected a natural landmark which parties involved in the drafting of the Agreement and familiar with the history of the vicinity’s land use testified was appropriate. By setting the boundary as the fence line running along the west side of the arroyo, it chose a particular line on the “western side, existing at this moment, of an arroyo which passes along the Black Rock.” (Agreement, paragraph #33). The Court did not contradict the language in the Agreement, but interpreted it in a way that was consistent with Navajo law. Land cannot be withdrawn for two purposes simultaneously. Yazzie v. Jumbo, 5 Nav. R. 75, 76 (1986). Using the existing range management fence as the boundary separates the grazing area from the agricultural area and allows efficient use of each. The district court’s decision was consistent with Navajo law and supported by the facts presented.
The'order of the district court is AFFIRMED. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502767/ | ORDER DISMISSING APPEAL
The appeal in the above-entitled matter, filed the 22nd day of May, 1978, having been received and considered, the Court finds:
1. The appeal was timely filed as the thirty (30) day period begins to run from the day the judgment was signed. The judgment in the official case file was signed and dated by the judge on April 20, 1978.
2. The Court of Appeals in the case of Brewster v. Bee and Benally held that where the District Grazing Committee and Resources (Central) Committee faded to act within sixty (60) days on a dispute properly before them, such failure is deemed concusive evidence of exhaustion of administrative remedies. Since the Committees faded to act within sixty (60) days the plaintiff in this case had exhausted Ms administrative remedies and the matter was properly before the *258District Court.
3. While the Court may consider the resolution of any chapter, the Court is not bound by the determination of the chapter.
4, There is no showing that the Court faded to follow either the applicable tribal ordinances or the tribal customs.
5. Appellant faded to raise the issue of indispensible parties at the District Court level, and is therefore barred from raising the issue on appeal.
6, There is sufficient evidence in the record to support the judgment of the District Court.
Therefore, the judgment of the District Court is AFFIRMED.
The Stay of Execution, issued the 23rd day of May, 1978, is hereby VACATED.
Date this 29th day of June 1978.
Marie F. Neswood Acting Chief Justice Of The Navajo Nation | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502769/ | ORDER OF DISMISSAL
The Petition for Writ of Mandamus in the above-entitled case having been duly filed with the Court of Appeals on the 19th day of January, 1978, and the suit which was the basis of the petition herein having been dismissed, and upon reviewing the petition submitted by the Counsel of Record for the Petitioner, it is ORDERED that the Petition for Writ of Mandamus filed herein be and it hereby is DISMISSED.
Dated this 3rd day of March, 1978.
Marie F. Neswood Acting Chief Justice Of The Navajo Nation | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502770/ | The Appeal in the above-entitled matter, filed the 20th day of December, 1977, having been received and considered pursuant to 7 N.T.C. Section 451, the Court finds:
1. Defendant was timely notified of the hearing in the above-entitled matter but failed to appear at the time set.
2. Defendant faded to timely file a motion for continuance in the matter as the motion was not filed until after the hearing.
3. Defendant's attorney should have known that the Clerk of the Court could not grant continuances .
4. A review of the District Court's records shows there are sufficient bases for granting a Judgment by Default,
*262THEREFORE, the Appeal, in the. above-entitled matter is DISMISSED.
Dated this ?th day of March, 1978.
Homer Bluehouse Acting Chief Justice Of The Navajo Nation | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502771/ | ORDER
This Court, having considered the above-entitled matter, finds Louise Sherman not guilty of contempt of court on the grounds that no evidence was introduced that established service upon her of the order of September 30, 1976,
However, Louise Sherman, having been orally informed by this Court of her duty to obey the probate decree of April 22, 1976, and having been provided by this Court with a copy of the same, is hereby ordered to comply with said order within 30 days of the date of this order.
Dated this 23rd day of March, 1978.
/s/ Marie Neswood Acting Chief Justice Of The Navajo Nation
/s/ Murray Lincoln, Associate Justice
/s/ Robert Walters, Associate Justice | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502774/ | DISMISSAL ORDER
The Motion for Dismissal in the above-entitled case having been duly filed with the Court of Appeals on the 31st day of March, 1978, and upon reviewing' and considering the motion.
IT IS THEREFORE ORDERED that the Motion for Dismissal filed herein be and it hereby is granted and the cause of action is hereby DISMISSED.
Dated this 31st day of March, 1978.
Marie F. Neswood Acting Chief Justice Of The Navajo Nation | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502775/ | ORDER OF DISMISSAL (WITH PREJUDICE)
The Motion for Dismissal, filed the 7th day of February, 1978, having been received and considered.
IT IS HEREBY ORDERED that the above matter DISMISSED with PREJUDICE.
Dated this 10th day of February, 1978.
Marie F, Neswood Acting Chief Justice Of The Navajo Nation | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502932/ | OPINION
Opinion delivered by
BLUEHOUSE, Associate Justice.
This is a case involving alimony. The issues in the case are the following: 1) When may an alimony decree be amended, modified or terminated; 2) Whether the doctrine of laches will bar recovery of alimony payments in arrears; and 3) Whether a spouse who has been awarded alimony is entitled to receive the full amount of payments in arrears.
Our holdings are as follows: 1) A court may not act on its own to amend, modify or terminate alimony; 2) As a general rule the doctrine of laches will not bar a claim for alimony in arrears; and 3) A payor spouse is under an absolute duty to pay the full amount of alimony in arrears.
I
Lois Yazzie, appellant, and Joe M. Yazzie, appellee, had been married for thirty-six years when their divorce was granted on March 16, 1982 by the Window Rock District Court. At that time, Joe was ordered to make alimony payments in the amount of $50.00 per month. Joe has never made any of the payments. On June 27,1990, Lois filed a Motion for Order to Show Cause why Joe should not be held in contempt for failure to make any of the court-ordered alimony payments. Lois sought judgment for $4,900.00 (the entire amount in arrears) in unpaid alimony and to have Joe found in contempt of court and fined or incarcerated.
After several continuances, a hearing was held on February 6, 1991 in the Tuba City Family Court to consider the issue of non-payment of alimony. The court made the following findings: (1) On March 16, 1982, Joe was ordered to pay $50.00 per month alimony; (2) Alimony was never paid resulting in arrear*34age of $4,900.00; (3) Joe has remarried and Lois has not; and (4) The life span of the alimony awarded by the divorce decree is indeterminate. In accordance with these findings the court found Joe guilty of contempt of court and fined him $100.00. The court also awarded Lois $1,350.00 in alimony arrearage and terminated future alimony payments. Lois appealed the discontinued alimony and the award of arrearage because it was less than the amount demanded in her complaint. The contempt of court holding was not appealed.
II
A
The first issue is whether, absent a petition by an interested spouse, a court may act on its own to amend, modify or terminate alimony payments. At the outset we affirm the power of the court to amend, modify or terminate alimony payments. Sells v. Sells, 5 Nav. R. 104 (1986). That power, however, is not unlimited. When a court acts to amend, modify or terminate the alimony payments that a spouse receives, it is acting upon a source of income that the divorce court has determined is a necessity. Any modification affects the economic expectations of the former spouses. The payor spouse expects to pay a certain amount each month and the payee spouse expects to receive a certain amount. The expectations of each spouse may not be arbitrarily affected by the court.
A petition explaining why the alimony decree should be changed must first be filed with the trial court before it can act to modify the amount of alimony payments. The other spouse must have notice of the petition and be given an opportunity to respond to the proposed changes consistent with due process requirements. We held in Begay v. Navajo Nation, 6 Nav. R. 20, 25 (1988), that basic due process requires giving a party an opportunity to present reasons why a proposed action should not be carried through. The court has a duty to consider all pertinent facts before deciding whether to modify a decree. In this case, neither party filed a petition requesting modification of the amount of alimony payments nor was given notice of and an opportunity to respond to the changes that the court initiated on its own.
To merit modifying an alimony order, there must be proof of changed circumstances which must be both substantial and continuing. This Court dealt with a similar issue in the area of child custody. In order to modify a custody decree, a non-custodial parent must allege and show a substantial change of circumstances. Barber v. Barber, 5 Nav. R. 9, 12 (1984) (quoting Lewie v. Notah, 3 Nav. R. 72 (1982)). The trial court has great discretion to determine whether to make changes. In any event, either the remarriage or the death of the payee spouse will terminate the obligation to make alimony payments. We hold that a court may not act on its own to amend, modify, or terminate a decree for alimony payments. A petition must first be filed requesting modification and the non-petitioning spouse must be given notice and an opportunity to be heard on the matter.
*35In this case, neither party filed a petition asking for changes. When Lois filed the action against Joe her only request was to have the divorce decree enforced. The court did not give the parties notice of what it intended to do. The court heard the matter and rendered its decision without first giving either party an adequate opportunity to formulate their own desired changes and support their arguments. Consequently, neither party was given an adequate opportunity to be heard on the matter. Instead, it appears that Lois was penalized for bringing her suit for enforcement of the divorce decree — her alimony was arbitrarily terminated and the arrearage reduced without prior notice. The family court clearly abused its discretion.
B
The next issue is whether the doctrine of laches should bar a claim for unpaid alimony. Alimony is based upon evidence which shows the need of the payee spouse and the ability to pay of the payor spouse. This need is met by the payments made by the payor spouse to the payee spouse. In the Navajo Nation, the payments are often the sole source of income for the payee spouse. Mere passage of time does not erase this need.
Upon entry of the divorce decree, both the payor spouse and the payee spouse are on notice of the court’s order awarding alimony and the amount. In this case both parties were properly informed of the order of the trial court. Joe knew of his duty to make the payments and Lois knew of the obligation due to her. The payor spouse is always under a court-ordered duty to make the payments in full and on time. In this case, Joe never made an effort to fulfill his duty by making even the first payment. A payor spouse, on notice, may not simply refuse to pay, wait out the order to comply and later assert laches to bar the claim of the payee spouse. This is what Joe has attempted to do. To allow delinquent spouses to wait out their obligations encourages irresponsibility and that would be against public policy. An alimony decree is a court-ordered obligation and should be treated with the utmost respect. We will not allow those decrees to go unenforced.
C
The final issue is whether a spouse is entitled to the full amount of alimony in arrears. Alimony payments, as they become due, become vested. In other words, the debt becomes absolute and cumulative. The payor spouse must pay the full arreage and it may not be retroactively modified. Allowing the payor spouse to be relieved of his obligation would be unfair and encourage non-compliance with alimony decrees. Denying the payee spouse the payments due to her would create hardship and deprive her of funds that are rightfully hers. Alimony awards are based on need, they are not rewards or bonuses or gifts to be revoked without penalty. The payment of alimony is a court-ordered obligation which must be complied with. If the payor spouse fails to satisfy that duty, he may be held in *36contempt and an appropriate remedy to enforce payment may be imposed.
For the foregoing reasons the orders of the trial court awarding only $1,350.00 for alimony in arrears and the termination of alimony payments are reversed. Joe shall be ordered to pay the full amount in arrears and to continue to pay the amount for alimony as set in the divorce decree dated March 16, 1982. The trial court shall file an order consistent with this opinion. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502776/ | ORDER
Per Curiam
On November 14, 1977, at the hour of 1:30 p.m., in cause No. A-CV-14-77, the case of Mike v. Mike, Louis Denetsosie was the Counsel of Record, and when the case was called, all parties appeared except Mr. Denetsosie, who had been duly notified of the hearing. He was summarily held in contempt of court for failing to appear and was sentenced to 30 days in jail, with the alternative of paying a fine of $180.00.
In addition to the fine and sentence, the Court issued forthwith an Order to Show Cause why Defendant should not be suspended from practicing law before the Navajo Courts. Subsequently, he filed a motion for reconsideration of the contempt judgment.
For the sake of convenience for all parties, both of the aforementioned matters were heard on the 9th day of Deeemaber, 1977.
The Court finds that:
*2711. It has jurisdiction of the subject matter and over the parties.
2. The reasons stated by the Defendant to justify his absence on November 14, 1977, are not such that would have prevented his appearing- in Court.
3. Respondent faded to Show Cause why he should not be suspended from the practice of law before our Courts.
IT IS THEREFORE ORDERED that Louis Denetsosie, having faded to Show Cause, be suspended from the practice of law before the Courts of the Navajo Nation for a period not to exceed 15 days from December 12, 1977. Should Louis Denetsosie fde a written apology to this Court, the imposition of the 15 day suspension will not be imposed.
IT IS FURTHER ORDERED the motion for consideration of the contempt order is DENIED.
SO ORDERED.
This 23rd day of January, 1978.
*272/s/ Charley John Acting Chief Justice Of The Navajo Nation
/s/ Homer Bluehouse, Associate Justice
/s/ Robert Walters, Associate Justice | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502777/ | JOHN, District Judge
This matter arises from a Final Probate Decree granted by this court on November 16, 1976, awarding a Grazing Permit, No, 12-960 for 104 SU including 5 horses with brand ZQI assigned in Grazing District 12, to the only surviving child of the decedent, Betty Nelson Todicheeny, upon the filing of affidavit of relinquishment by the surviving spouse of her legal interest in his (decedent's) share of the grazing permit.
Cecilia N. Henderson and Tom D. Nelson, Petitioners, objecting to the Final Probate Decree are natural siblings of the decedent and were granted an order setting aside the probate decree on February 8, 1977 and permitted to file their objections. Petitioners objections were heard on March 9, 1977.
*274The issue for this Court to decide is the following:
Did the decedent, prior to his death, give a portion of his Grazing Permit as a gift inter vivos to his brother and sister?
It is undisputed, based upon oral testimony, that a valid marriage existed between the decedent and Marilyn Nelson. There was one child born of this marriage, namely: Betty N. Todicheeny. This then constitute the legai heirs of the estate.
The issue of controversy is a Grazing Permit issued to the decedent on November 24, 1941, during the existing marriage of the decedent making this property subject to the community property laws. The decedent, if he was to make a gift inter vivos of the permit could only do so with his half.
Petitioners, Tom D. Nelson and Cecilia N. Henderson, claim that the decedent gave them a portion of his share of the grazing permit as a gift inter vivos and the court could not include that portion of the grazing permit in the estate. To constitute a valid gift inter vivos, the property must have been delivered to the Donee effectuated by the delivery of the deed. For obvious reasons, "deed" could not be the mechanism for transfer here. However, a grazing permit is the functional equivalent. There is some question as to whether a grazing permit is real or personal property. This is a recurring question so a final determination ought to be made as to the status of that issue; however, that is a question for the Court of Appeals.
*275In this case, the donor died before the transfer of the permit to the petitioners and our laws are silent on the question as to what constitutes or what is required to prove the decedent's intent under the present circumstances. Most states require a written will to prove the decedent's intention and oral wills are usually not acceptable. Grazing permits and their dispositions are highly and emotionally sensitive to the Navajo People and generally give rise to highly emotional controversies; therefore, in instances where the donor in a gift inter vivos situation dies before actual or effective delivery of a grazing permit and absent any written will dictating descent or where the will is silent on that issue, such permit should be transferred to the Navajo Nation's intestacy law or to marital interest law as the case may be.
Petitioner's argument here is relatively weak absent evidence of a duly recorded Grazing Committee approval of the decedent's intentions. The decedent did sign a blank Bill of Sale or Transfer Forms but evidence of actual physical transfer or securing Grazing Committee ratification was unfortunately lacking or not submitted into evidence. It is clear that both of the above elements have to be established before the gift inter vivos is declared valid. This Court may have taken a different view had the Grazing Committee testified as to their ratification of decedent's intention in this case. There was argument offered that BIA approval as far as completion of Bill of Sale and Transfer Forms is essential. This Court will dispose of that contention as irrelevant and immaterial.
The fact that decedent announced his intention to the Grazing *276Committee Is indicative but not controlling. He did not carry through his announced intention, thus the gift still remains unexecuted and that failure properly put the permit into probate.
Therefore, the Grazing Permit was properly distributed as part of the estate according to the probate laws of the Navajo Nation and petitioners are denied their relief.
It is so ordered. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502778/ | WALTERS, District Judge
On January 17, 1978, the Plaintiff filed a Motion for a Temporary Restraining Order and Permanent Injunction seeking to restrain the defendants from engaging in a variety of acts while on strike against the Plaintiff.
On that same day, a Temporary Restraining Order was issued *278without notice to the defendants enjoining a number of acts.
The next day the Court, on its own motion, deleted paragraphs k, I, m, n, r and t of the Temporary Restraining Order as the Court felt these paragraphs violated the rights of the defendants.
On January 19, 1978, the defendants filed a motion pursuant to Rule 18, Rules of Civil Procedure, to dissolve the Temporary Restraining Order
The defendants' motion raises three questions which must be answered by this Court:
1. Does this Court lack jurisdiction in this matter because of the provisions of 7 N.T.C. 133?
2. If this Court has jurisdiction pursuant to the Navajo Tribal Code, does it lack jurisdiction pursuant to the provisions of the Norris-LaGuardia Act, 19 U.S.C. 101 et seq.?
3. If this Court has jurisdiction, did it act properly in issuing the Temporary Restraining Order?
The first question must be answered in the negative.
Title 7, Section 133(e) of the Navajo Tribal Code grants jurisdiction to the Navajo courts over all matters "which may hereafter be placed within the jursidiction" of the courts by Tribal Council Resolution. •. -
*279Title 17, Section 741 et seq, of the Navajo Tribal Code, dealing with trespass, does not refer to Indians committing a crime but rather "persons11.
Since this section of the Navajo Tribal Code was passed on February 17, 1976, and is therefore later than 7 N.T.C. 133, it is clear that 7 N.T.C. 133(e), when read in conjunction with 17 N.T.C. 741 et seq., confers jurisdiction over non-Indians.
In order for this Court to prevent a criminal act from occurring, it is necessary that this Court possess the appropriate civil jurisdiction to enjoin the threatened criminal act.
This Court would be remiss in its duty to the public were it to merely wait for a criminal act to occur rather than issue an order to prevent it.
The second question must also be answered in the negative.
The Norris-LaGuardia Act, 29 U.S.C. 101 states that "no court of the United States, as herein defined [emphasis added] shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in strict conformity with the provisions of this Act..."
Thus, it must be determined whether Navajo courts are "courts of the United States" as that term: is used in the Norris-' *280LaGuardia Act.
29 U.S.C. 113(d) defines the term "courts of the United States" as follows:
The term "courts of the United States" means any court of the United States whose jurisdiction has been or may be conferred or defined or limited by Act of Congress, including courts of the District of Colombia.
The Ninth Circuit Court of Appeals in the case of International Longshoremen's & Warehousemen's Union v. Wirtz, 170 F.2d 183, cert. den. 336 U.S. 919, 93 L.Ed. 1082, 69 S.Ct. 641 reh. den. 336 U.S. 971, 93 L. Ed. 1121, 69 S.Ct. 936, stated that the phrase "courts of the United States", without more, means solely courts created by Congress under Article III of the Constitution of the United States.
Obviously, when the Constitution of the United States was written Indian courts had not been conceived. Therefore, Navajo courts are not Article III courts and the restrictions of the Norris-LaGuardia do not apply.
Assuming the Norris-LaGuardia Act does apply to Navajo courts, the Temporary Restraining Order issued still complies with the provisions of the Act. 19 U.S.C. 104 specifies what a temporary restraining order and injunction may not enjoin. This Court's order does not enjoin anything covered in 29 U.S.C. 104.
The defendants cannot seriously argue that the order re*281straining them from committing criminal acts violates any provision of the Norris-LaGuardia Act.
The final questions posed by the defendants' motion must also be answered in the negative.
This Court, on its own motion, deleted those paragraphs of the original Temporary Restraining Order which might have violated the defendants' rights of freedom of speech, assembly, due process and equal protection.
The Temporary Restraining Order merely prevents the defendants from engaging in any acts which would be criminal even without the Temporary Restraining Order.
The Temporary Restraining Order was issued by this Court in the hope that such an order would act to prevent any further violence from occurring.
A full hearing in this matter has been set for January 30, 1978, and the defendants will have a further opportunity to present their side of the case.
The Motion to Dissolve the Temporary Restraining Order is DENIED. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502779/ | JOHN, District Judge
This is a ruling on defendants' Motions to Dismiss the Complaint against them on grounds that the Court lacks subject matter and personal jurisdiction. All Parties have agreed that these issues are to be decided on the briefs as submitted to this Court and that oral argu-mentas unnecessary and therefore waived.
*283Piaintiffs are Bennie and Jorena Thompson, enrolled members of the Navajo Tribe and residents of the Navajo Reservation. Defendants, Wayne Lovelandy's Frontier Ford (hereinafter Frontier Ford) and the First National Bank of Albuquerque (hereinafter First National) are engaged respectively, in the businesses of selling and financing new and used motor vehicles in Albuquerque, New Mexico.
The Complaint alleges that on or about April 22, 1977, the defendants or their agents and employees did remove for repossession purposes, plaintiffs1 vehicle from land subject to the Tribe's jurisdiction, without written consent from plaintiffs and without any Order from the Navajo District Court and thereby violated Title 7, Section 307 of the Navajo Tribal Code and are therefore civilly liable to plaintiffs pursuant to Section 309 of the same Title 7.
The Court does not address the merits of this case at the present time. For purposes of ruling on these Motions, the allegations in the Complaint will be treated as true.
The sole question to be determined in this opinion is whether or not the Navajo District Court may validly assert subject matter and personal jurisdiction over the defendants in the circumstances of this case. The Court finds that under the Navajo Tribal Code and under the Constitution and laws of the United States, it may validly assert such jurisdiction, but that personal jurisdiction has not been properly asserted over the defendants in this case.
*284Subject Matter Jurisdiction
The statute conferring subject matter jurisdiction upon the Court in repossession cases such as this is, 7 N.T.C. Section 133, which reads in the relevant part;
The Trial Court of the Navajo Tribe shall have original jurisdiction over...(e) Miscellaneous. All other matters over which jurisdiction has been heretofore vested in the Navajo Tribal Courts of Indian Offenses, or which may hereafter be placed within the jurisdiction of the Trial Court by resolution of the Tribal Council. (emphasis added)
This statute was passed as Tribal Council Resolution CO-69-58 on October 16, 1958. Pursuant to the authority granted to it in Section 133(e), supra, the Navajo Tribal Council subsequently passed Section 307, defining procedures necessary for repossessions and Tribal Council Resolution CJN-53-69, passes on June 4, 1969 (7 N.T.C. Section 309, providing for the civil liability of any persons or businesses violating Section 307). By virtue of these subsequent resolutions, all repossession cases based on alleged violations of Section 307 of Title 7 of the N.T.C. and the parties involved therein, were placed under the original jurisdiction of the Navajo Trial Courts by affirmative legislative action.
Subsection (e) of Section 1333 of Title 7, N.T.C. is the relevant subsection upon whch jurisdiction is based in this case, not only because of repossession statutes were passed subsequent to the effective date of Section 133, but also because the defendants are non-Indians. Subsection (b), which defendants argue should be con*285trolling, reads as follows:
Civil Causes of Action. All civil actions in which the defendant is an Indian and is found within its territorial jurisdiction.
From its language alone it clear that subsection (b) does not provide the basis for jurisdiction in cases based on allegedly wrongful actions by non-Indians.
Subsection(e), "Miscellaneous" in Section 133 has been held to be the basis for Navajo Trial Court jurisdiction over non-Indians. The case of Navajo Tribe of Indians v. Orlando Helicopter Airways, (App. Ct. 1972) established the principle that a cause of action may be "a special type of action not to be included under 'all civil actions' in Title 7, N.T.C. Section 133(b)." Id. at 2.
In accordance with the reasoning in the Orlando case, this Court finds a wrongful repossession action, based on 7 N.T.C. Section 307, is a "special type of action", not within the meaning of subsection (b) of Section 133 of Title 7 of the Navajo Tribal Code, for the following reasons: It is based on legislation passed subsequent to the effective date of Section 133 and passed in order to remedy a specific problem not previously covered in the Navajo Tribal Code; the problem sought to be remedied by the legislation was of a type known to be caused substantially by the activities of non-Indians as well as Indians; and the cause of action is not clearly or traditionally "civil" in nature, but is quasi-criminal in that it is derived from he common law crime of breach of the peace./1. See, Orlando, supra at 2.
*286Defendant First National contends that because there is no express grant of jurisdicton over causes of action involving non-Indians, that it should not be presumed that the Tribal Council intended jurisdiction in such cases. This argument is extremely unrealistic and without merit. The Orlando case has already established that subsection (e) of Section 133 of 7 N.T.C. contemplates jurisdiction over non-Indians. Orlando, supra at 2.
Additionally, the language in Section 309 of Title 7, N.T.C. is all-inclusive, unlike the language in subsection (c) of Section 308 of the same Title. Sectin 308 provides expressly for a separate criminal penalty for Indian violators of Section 307. If the Tribal Council had intended to limit the civil penalties established in Section 309 to Indians only, it would have done so expressly as it did in part in the preceding Section of the Code. The language of Section 309 however, is not limited, but refers generally to "any person" and "any business" as incurring civil liability. Anyone with a minimum level of intellectual consciousness is aware of the fact that almost all, if not all, conditional sellers and finance institutions in the area of this Reservation are owned and operated by non-Indians (and are located outside of lands subject to the Navajo Tribe's territorial jurisdiction). It is almost necessary, and it is certainly fair to presume that the Navajo Tribal Council was also aware of this fact at the time it passed the repossession laws. Thus, the Council's use of broad, inclusive language in defining what class of persons and businesses these laws were meant to restrain, indicates that non-Indian non-residents and non-Indian foreign businesses were implicitly included in this case are within the subject *287matter jurisdiction authorized by the above-mentioned statutes.
Furthermore, there is no need for any "express" statutory provision for jurisdiction over the actions of non-Indians which occured on lands subject to the jurisdiction of the Navajo Tribe and which incur only civil liabilities. Indian governments have inherent and exclusive authority to regulate their "internal affairs" even when these affairs involve non-Indians. Williams v. Lee, 358 U.S. 217, 3 L. Ed. 2d 251, 255-256 (1959). The manner of effectuating a repossession of personal property from a Navajo Indian upon lands subject to the jurisdiction of the Navajo Tribe is an "internal affair" of the Navajo Government in that it concerns the maintenance of public peace and safety on those lands entrusted to the guardianship of the Navajo People by tradition as well as by treaty.
Defendant First National's reliance on the case of Oliphant v. The Suquamish Indian Tribe, 46 U.S.L.W. 4210 (March 6, 1978) is not persuasive because the case is entirely inopposite to the issues before the Court. The holding and ratónale of the Qliphant decision are narrowly confined to the issue of criminal jurisdiction only. An even more recent United States Supreme Court decision has reaffirmed the Williams v. Lee principle of inherent tribal sovereignty over internal affairs in civil matters and in addition has indicated that the Qliphant decision in no way altered this fundamental principle of Indian law. See, United States v.Wheeler, 46 U.S.L.W. 4243 (March 22, 1978).
*288In conclusion then, this Court finds that it clearly has subject matter jurisdiction over the issues in this case.
Personal Jurisdiction.
As to the validity of this Court's asserting personal jurisdiction over the defendants, the initial question is a constitutional one, i.e. whether the Navajo Nation has the power within the standards of due process to assert personal jurisdiction over foreign corporations as a consequence of such corporations' acts in Navajo territory such as the alleged repossession in this case. Title 11, Civil Rights Act of 1968, Sec. 202(8). The Court finds that it has such power according to the modern expansions of the "minimum contacts" standard emanating from the cases of Internanational Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) and Milliken v. Meyer, 311 U.S. 457, 463 (1940)./2
The single act of unlawful repossession perpetrated upon the lands subject to the jurisdiction of the Navajo Tribe is a sufficient "contact" and reasonable basis for the Tribe's assertion of personal jurisdiction over the defendants within the meaning of due process of law. Reeder Contractors of Arizona v. Higgins Industries, Inc., 265 F.2d 768, 772-773 (9th Cir. 1959)/3; Hansen v. Denckla, 357 U.S. 235, 253, 2 L. Ed2d 1283 (1958); McIntosh v. Navaro Seed Co., 81 N.M, 302, 466 P.2d 868, 870 (1970); Navajo Tribe v. Orlando Helicopter Airways, Inc., supra at 3. -
Extraterritorial service of process by registered mail is a sufficient method of acquiring personal jurisdiction over non-resid-*289dent defendants since it is a method reasonably calculated in the circumstances, to appraise the defendants of the action pending against them and to give them an opportunity to present their objections to it, as they have done in their Motions to Dismiss in this case» Mullane v. Central Hanover Bank, 339 U.S. 308, 94 L.Ed. 865, 873 (1950); McGee v. International Life Insurance Co., 335 U.S. 220, 2 L.Ed.2d 223 (1957).
The second question to be answered in determining the validity of this Court's personal jurisdiction over defendants is whether the Navajo Tribal Council has exercised its inherent legislative power by manifesting its intent to assert jurisdiction over non-resident businessess or individuals. See, Pulson v. American Rolling Mill Co., 170 F.2d 193 (1st Cir. 1958)./4
This second question is also answered in the affirmative. Title 7 of the Navajo Tribal Code, Section 133 (e), infra, implicitly asserts Navajo Nation jurisdiction over no-Indian non-resident businesses and individuals. The Navajo Court of Appeals has interpreted this section of the Code to be a legislative assertion of subject matter jurisdiction. Orlando, supra at 2 and 3.
Particularly due to the language of subsection (e), it was the obvious intent of the Navajo Tribal Council that Section 133 of Title 7 of the Code should serve as a general, open-ended, statutory assertion of Tribal jurisdiction over all persons and subject matters which directly influence or constitute the "internal affairs" of the Navajo Nation and which might be brought before the Navajo Courts within the *290limits set by the United States Constition".
"Territorial" jurisdiction is treated entirely separately in Title 7, N.T.C, Section 134. This indicates that except insofar as due process limitations on jurisdiction are relevant, the assertions of jurisdiction in Section 233 are intended to apply to persons regardless of their physicial presence or absence from the territorial jurisdiction of the Nation.
Furthermore, unless Section 133 is construed to be an assertion of personal as well as subject matter jurisdiction, the obvious intent of the Tribal Council would be thwarted. If the section were to be construed otherwise, then the laws of the Nation and duties of the courts would be reduced to meaningless scratchings of pen and ink. Common sense would be violated and the powers of the courts would be undermined, for it is impossible to enforce laws except against or on behalf of individuals and personal jurisdiction is the logical and practical prerequisite to such enforcement. Certainly it is fair to infer that it was the intent of the Tribal Council in its general jurisdiction statute, to assert personal jurisdiction over persons alleged to have violated the civil laws of the Nation.
There is no unfairness to defendants in this findings since the circumstances when the Navajo Courts will assert personal jurisdiction over non-Indian non-residents have been clearly specified in Navajo law since at least 1972 by the Orlando case, supra. There the Appeals Court stated:
"When a non-Indian enters I ndian land for the *291purpose of doing, business thereon, he may very well be considered to have submitted himself to the jurisdiction of the Indian Courts," Id. at 3.
Additionally, since 1963 it was obvious in the all-inclusive language of 7 N.T.C. Section 309 referring to "any person" and "any business", that the Tribe had manifested its intent to assert jurisdiction over such persons as the defendants in this case. See, infra at 3.
The determination of under what circumstances they will choose to exercise jurisdiction over a foreign corporation, under and according to the laws of the state, “is reserved for the courts of the (forum) state." Perkins v. Benquet Mining Co., 342 U.S. 437, 96 L.Ed. 485 (1951). Cf. Ark-La Feed and Fertilizer Co. v. Marco Chemical Co., 292 F.2d 197, 201 (8th Cir. 1961); Mitchum v. Mitchum, 518 S.W.2d 362 (Texas 1975).
The third question to be answered in determining the question of the validity of personal jurisdiction in this case is, has the Tribal Council anywhere provided jurisdiction over non-Indians outside the territorial jurisdiction of the Tribe? Again, the answer must be in the affirmative.
Defendant First National contends that there is no statute in the Code which "contemplates" jurisdiction over persons not physically present within the territorial jurisdiction of the Tribe. The conclusion that First National urges upon the Court is that extraterritorial service of process on non-Indians by certified mail is not authorized by the controlling law, the law of the forum.
*292The Court agrees that Navajo law is controlling on the issue of what methods of service and notice are authorized to obtain personal jurisdiction. See, Restatement (Second) Conflicts, Section 128. However, the Court does not agree that the forum has failed to provide a means for obtaining personal jurisdiction by extraterritorial service of process on non-Indians by certified or registered mail. The Court finds - effective distinction between registered and certified mail to be meaningless to - issues in this case.
By an affirmative legislative act, 7 N.T.C. Section 301 (a), the Navajo Tribal Council delegated to the judicial branch, the responsibility and authority to make rules governing ail procedural matters coming before the courts of the Nation. The provision reads as follows:
"A majority of the judges of the Trial Court of the Navajo Tribe may adopt rules of pleading, practice and procedure applicable to any or all proceedings in the Trial Court and the Court of Appeals..."
Procedural rule-making power may legitimately be delegated to the judiciary, (without offending the principle of separation of powers). Heat Pump Equipment Co. v. Glen Alden Corp., 380 P.2d 1016 (Ariz. 1963. Although most states have vested their courts with the judicial branch power by means of a state constitution, the Navajo Nation has done this by statute: 7 N.T.C. Section 101, which states:
"The Judicial Branch of the Navajo Tribal government shall consist of the Trial Court of the Navajo Tribe and the Court of Appeals of the Navajo Tribe."
Rules affecting service of process are well-recognized as *293being "procedural" in nature since they relate "merely to the manner and means by which a right to recover is enforced." Mississippi Publishing Corp. v. Murphree, 326 U .S. 438, 446, 90 L. Ed 185 (1946); McGee v. International Life Insurance Co., supra, (rule allowing service by registered mail to be made upon foreign corporations did not enlarge or impair substantive rights and was therefore, "procedural").
Pursuant to the authority vested in it by 7 N.T.C. Section 301 (a) the Navajo Judiciary has enacted a Service of Process rule, Rule 3 of the Rules of Civil Procedure, which contemplates and implicitly authorizes such methods of service as extraterritorial service by certified mail, in the following language:
... Upon proper circumstances, within the limits of jurisdiction and constitutionality, the judge may authorize service of process by such other means as he deems appropriate.11
Since extraterritorial service by certified mail is established as a valid method for acquiring personal jurisdiction over non-resident defendants, per Mullane and McGee, supra, it is fair to infer that such method of service is intended by and is within the meaning of Rule 3. Rule 3 allows a judge to act only within the limits of the jurisdiction already established by the legislature and therefore, the Rule does no violence to the principle of separation of powers.
An additional basis for this Court's finding that Navajo law authorizes extraterritorial service by registered or certified mail is the language in paragraph two of Rule 3, which expressly authorizes service by registered mail in the following sentence: "If personal *294service cannot be effected within five days, notice may be given by registered mail."
There is no language in Rule 3 that purports to limit service by registered mail to intraterritorial parties nor does there appear to be any law requiring express provision for extraterritorial service in these circumstances. At any rate, the Navajo Court of Appeals has interpreted Rule 3 to be an authorization of extraterritorial service of process by mail, in the case of Yazzie v. Wyaco, Jr. (App. Ct. March 1977) at 2. The holding of the Wyaco case affirmed a trial court's assertion of personal jurisdiction by means of extraterritorial service by mail upon an Indian member of the Navajo Tribe who was living temporarily off the Reservation. The Wyaco case did not deal with the propriety of such service upon non-Indians, but it is relevant to the case currently before this Court insofar as it indicates that despite the lack of express language regarding extraterritorial service by mail, Rule 3 of the Rules of Civil Procedure implicitly authorizes such service.
In conclusion, since the Navajo legislative has provided for subject matter and persona! jurisdiction over non-Indian non-resident businesses and individuals by virtue of 7 N.T.C. Section 133(e) and 7 N.T.C. Sections 307-309; and since the Navajo legislature has effectively ratified extraterritorial service by registered mail insofar as 7 N.T.C. Section 301(a) unconditionally delegates the choice of method of service to the judiciary; and since the judiciary has exercised this power by passing Rule 3 of the Rules of Civil Procedure, this Court finds that extraterritorial: service of process by registered mail is authorized by the laws of the Navajo Nation and personal jurisdiction over such defendants as Frontier Ford and First National Bank may be *295asserted by this Court.
However, this Court also finds that the defendants were not served with process in accordance with the terms of Rule 3 of the Rules of Civil Procedure since there was no showing by plaintiffs in this case that personal service could not have been effected within five days, and no judicial authorization of service made extraterritorially was obtained. For these reasons the service made upon defendants Frontier Ford and First National Bank on the 28th day of September, 1977, is hereby quashed and plaintiffs are instructed to petition the Court for authorization to serve defendants extraterritorially by registered mail after showing that effective personal service cannot be made within five days, in strict accordance with Rule 3 of the Rules of Civil Procedure if they wish to pursue their case against the above-named defendants.
1. In the Preamble to Tribal Resolution CJN-53 69 supra, the Council explained, "5. The purpose of Resolution CF-26-68 (7 N.T.C. Section 307) is to prevent violence and breach of the peace in the repossession of personal property of Navajo Indians from land subject to the jurisdiction of the Navajo Tribe..."
2. See, Shaffer v, Heitner, 45 U.S.L.W. 4849 (June 24, 1977) wherein the Supreme Court explains the evolution in the federal courts away from the notion of physical power and territorial sovereignty as the grounds for state assertions of jurisdiction over person to the current basis for personal jurisdiction, which is the reasonableness of the assertion in light of the "relationship among the defendant, the forum and the litigation". jd. at 4845.
3. "a single act or transaction may be the basis for jurisdiction over a non-resident defendant when.. .the defendant's agent's acts have a substantial connection with the (forum) state and also have a substantial connection with the cause of action sued upon." jd. at 773.
4. "There is nothing to compel a state to exercise jurisdiction over a foreign corporation unless it chooses to do so, and the extent to which it so chooses is a matter for the law of the state as made by its legislature." jd. at 194. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502780/ | NESWOOD, Acting Chief Justice
I,
This case comes on appeal from a judgment of the Chinle District Court finding the defendant, Alex Carty, guilty of Driving While Intoxicated. The defendant was also found guilty of Failure to Stop For An Emergency Vehicle and Not Possessing A Valid Driver's License, but did not appeal these two charges because of the limitations of 7 NTC 302. The Judgment and Mittimus for the three charges sentenced the defendant to 75 days in jail or a fine of $140.00. It did not differentiate the sentences for each charge.
The evidence, as it appears to this Court, was that the defen*297dant executed a right turn and in the process of turning drove his vehicle left of the center line. The police officer stopped the defendant and arrested him for Driving While Intoxicated after he smelled alcohol on the person.
According to the Prosecutor, no field sobriety or breathalyzer tests were administered. The sole grounds for arresting the defendant, according to the Prosecutor, was the smell of alcohol and the fact that the defendant's clothes were dirty and his hair mussed.
II.
The sole issue for this Court to decide is whether the odor of alcohol on the person and dirty clothes are sufficient to convict a person of Driving While Intoxicated.
After reading the Prosecutor's brief and listening to his oral argument, the Court concludes that Mr. Cadman is obviously unaware of the requirements of the Navajo Code to convict a person of Driving While Intoxicated. Were this Court to agree with the Prosecutor's reasoning, any person operating a motor vehicle with dirty clothes on might be charged and convicted of drunk driving. That dirty clothes do not make drunk driving is so obvious that this Court has difficulty believing that this argument was even made.
The additional facts presented are also insufficient to *298substantiate the charge* The officer observed the defendant left of center on only one instance. That instance was when the defendant turned right - a time when many sober people also swing left of the center line.
This Court does not believe that the mere odor of alcohol is sufficient to convict a person of Driving While Intoxicated. There are other ways in which the smell of alcohol can be present without the person being intoxicated. The Navajo Police have available equipment to test the level of a defendant's intoxication. The Navajo Police can also administer field sobriety tests to determine whether or not a person is drunk. In this case, according to the Prosecutor, no test was administered at all.
If the Navajo Police desire to convict persons of Driving While Intoxicated, care should be taken to establish the requisite amount of proof. The amount of proof required in a criminal case, including traffic violations, is proof beyond a reasonable doubt. This proof cannot be established by a smell of alcohol and dirty clothes.
This Court has no alternative but to reverse the conviction for Driving While Intoxicated.
IV.
In reviewing the Judgment and Mittimus in this case, this Court has encountered several problems. The Judgment does not separ*299ate the sentences for each of the three charges, making it impossible for the Court to determine what portion of the sentence should be reversed .
Additionally, the Judgment states on one charge that the defendant was found guilty of violating 14 NTC 251, which is failure to stop for an emergency vehicle. However, the Judgment states "Failure to Exercise Due Care". Thus, the Judgment in this case is improperly prepared.
There is no alternative available to this Court except to reverse these convictions as well.
V.
For the reasons stated in parts HI and IV of this opinion, the entire conviction in this case - No Valid Driver's License, Failure to Stop For An Emergency Vehicle and Driving While Intoxicated - is REVERSED.
The Navajo Nation is ORDERED to refund the defendant's fine of $140.00 within twenty days.
JOHN, Associate Justice and LYNCH, Associate Justice, concur. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502781/ | NESWOOD, Acting Chief Justice
I.
This case is on appeal from a judgment of the Shiprock District Court finding the defendant, Kee Browneyes, guilty of Driving While Intoxicated and Possession of Liquor.
The evidence presented at trial was that the defendant was hitchhiking in the vicinity of Beclabito, New Mexico when a pickup with four people in it stopped for him. The defendant testified that the owner asked him to drive, which he did, and that he was given a beer while he drove. He further testified that he did not know that there was any other liquor in the pickup.
*301The defendant was stopped by an Arizona Department of Public Safety Officer around Teec Nos Pos, Arizona and charged with Driving While Intoxicated and Possession of Liquor.
Judge Charley John ruled that knowledge and intent to transport liquor was not required to convict a person under 17 NTC 561 and found the defendant guilty of both charges. Mr. Browneyes was sentenced to sixty (60) days in jail, but his sentence was suspended and he was placed on probation for that time.
When the defendant appealed, the Acting Chief Justice dismissed the case on the grounds that 7 NTC 172 (7 NTC 302, 1977 compilation) required a sentence in excess of fifteen (15) days in jail or a $26 fine in order to appeal.
The defendant then filed a Motion for Reconsideration, alleging that a sentence of sixty days probation exceeded the limitation of the Navajo Tribal Code, that the limitation of the Code violates the Indian Civil Rights Act and that the decision of the Shiprock District Court holding that knowledge and intent to transport liquor was not required was error.
We accepted the Motion For Reconsideration and a full hearing was held on October 18, 1978.
II.
The issues presented by this case are:
*3021. Does the limitation of 17 NTC 172 (7 NTC 302) violate the due process and equal protection sections of the 1968 Indian Civil Rights Act, 25 U.S.C. 1302?
2. Does a sentence of probation in excess of 15 days exceed the limitation of 7 NTC 172 (7 NTC 302)?
3. Should the conviction for Possession of Liquor be reversed if the case is appealable?
Ill.
Although no legislative history is available to this Court to examine, it appears that the purpose of 7 NTC 172 (7 NTC 302) was to limit what the Tribal Council felt would be a large number of appeals.
This Court must bear in mind that the section in question was passed in 1959, before Congress passed the Indian Civil Rights Act and mandated due process and equal protection by Indian Courts and governments. Therefore, the Court must examine the limitation of 7 NTC 172 (7 NTC 302) to see if it now complies with the federal law.
"Equal protection does not require identity of treatment. It only requires that classification rest on real and not feigned differences..." Walters vs. City of St. Louis, 347 U.S. 231, 74 S.Ct. 505, 98 L.Ed. 660.
To this Court, there is no difference between those persons *303who can appeal and those who cannot, except the sentence. To say there is a difference is to diminish the impact of one person's conviction solely because his sentence is less than 15 days or $26. The consequences, legal and civil, and the stigma of conviction still attach.
"Equal protection in its guaranty of like treatment to all similarly situated permits classification which is reasonable and not arbitrary and which is based upon substantial differences having a reasonable relation to the objects or persons dealt with and to the public purpose sought to be achieved by the legislation involved." Champlin Refining Co. v. Cruse, 115 Colo. 329, 173 P.2d 213.
This Court does not believe that any rationale purpose is achieved by 7 NTC 172 (7 NTC 302). The only reasonable purpose behind such a limitation is to reduce the number of potential appeals and thereby save the public the expense.
To say that an appeal does not present an issue worthy of appellate consideration merely because the sentence is less than 15 days in jail or less than $26 is to ignore the fact that judges may make mistakes even when small sentences or judgments are given.
In that the Rules of Appellate Procedure require substantial grounds for an appeal to be stated, the number of appeals is limited to those that present genuine issues. Therefore, the interest of the public in saving money is protected. To insure justice for all, it is *304necessary that the limitation of 7 NTC 172 (7 NTC 302) be declared null and void as violative of the Indian Civil Rights Act.
The appeal in this matter is therefore allowed. Because we find 7 NTC 172 (7 NTC 302) to be void, we need not consider the question of whether a sentence of probation in excess of fifteen (15) days is appealable despite the limitation of the Navajo Code.
IV.
Counsels for the defendant have urged this Court to decide whether 17 NTC 561 requires actual intent to possess or transport. We decline to do so for two reasons:
According to the evidence presented at trial, the defendant was handed a can of beer, which he consumed. Under 17 NTC 561, he was therefore possessing liquor. The defendant is still guilty of violating 17 NTC 561 even if we were to rule the judge's interpretation of that section incorrect. Thus, we need not reach the question of the judge's interpretation of the law in regards to intent and knowledge.
Secondly, the new Criminal Code of the Navajo Nation goes Into effect on November 4, 1978. Section 410 of the new Code requires intent or knowledge as a prerequisite to conviction. Section 410 should eliminate this problem from arising in the future.
V.
For the reasons stated above, the limitation of appeals in 7 *305NTC 172 (7 NTC 302, 1977 edition) is declared null and void. The conviction of the defendant is AFFIRMED.
LYNCH, Associate Justice and WALTERS, Associate Justice, concur. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502782/ | PER CURIAM
I
On August 26, 1978, the Appellant was notified by the Navajo Board of Election Supervisors that the Board was considering disqualifying him from running for the Navajo Tribal Council. The reason the Board gave was that they had received information that the Appellant was not thirty years of age.
Mr. Deswood requested a hearing on September 1, 1978 and that hearing was held on September 19, 1978. An opinion, dated the same day as the hearing, was issued bearing only the signature of Raymond Lancer and without noting the votes of the other members of the Board. The opinion issued claimed jurisdiction pursuant to 11 NTC *30751 and 11 NTC 52 (1969 edition) as well as the Rules and Regulations of the Board,
Appellant filed this appeal on October 10, 1978. Because of the limited time available before the election and by agreement of the parties, this matter was considered only on the briefs submitted.
II
The issues before this Court are:
1. Did the Board of Election Supervisors possess the authority to disqualify a candidate?
2. Assuming that the Board does possess this authority, was its decision to disqualify Peter H. Deswood, Jr. correct?
III
In this case of Benally vs. Lancer, et al., decided on October 12, 1978 with a written opinion being issued this same date, this Court clearly stated that the Board of Election Supervisors does not possess the authority to disqualify any candidate. The reason this Court reached that conclusion is stated in Section 111 of that opinion and need not be restated here. This Court believes that the reasoning contained in that opinion is still valid.
However, on November 3, 1978, the Supreme Judicial Council of the Navajo Tribal Council issued an order vacating this Court's order of October 12, 1978 in the Benally case and disqualifying *308Mr. Benaily from running for the Tribal Council.
No reasons what-so-ever were stated in the Order of November 3, 1978, and it is therefore not clear that the Supreme Judicial Council found that the Board possessed disqualification powers or that 11 NTC 51 and 11 NTC 52 were proper bases of jurisdiction.
This Court must attempt to decide what the Supreme Judicial Council meant. In order to reach its decision, we believe the Supreme Judicial Council decided that the Board of Election Supervisors had the power to disqualify candidates.
As this Court will abide by the decisions of the Supreme Judicial Council where it is possible to understand them, the first issue is decided in favor of the Appellee.
IV
The next issue for this Court, whether the Board reached a correct decision to disqualify the Appellant, raises different questions than those of the Benaily case.
7 NTC 204(a) (1977 edition) requires the Courts of the Navajo Nation to apply federal law, where applicable. Thus, this Court is required to apply the law and standards of the 1968 Indian Civil Rights, 25 U.S.C. 1302. This was exactly what was stated by the United States Supreme Court in Santa Clara Pueblo v. Martinez, *309_ U.S. __56-L.-Ed.2d 106;
"Tribal forums are available to vindicate rights created by .the ICR A and § 1302 has the substantial and intended effect of changing the law which these forums are obliged to apply."
56 L. Ed.2d at 119.
25 U.S.C. 1302, subsection 8 requires tht no Indian government shall deprive a person of due process or equal protection of the law.
In considering whether Mr. Deswood has been denied equal protection of the law, this Court has examined the past actions of the Board of Election Supervisors as was raised in Appellant's brief. The Board has apparently never attempted to disqualify candidates in the past - a fact Appellee concedes. In this election, at most, only four candidates out of one hundred and sixty-one had their qualifications examined.
In the case of Yick Wo. v, Hopkins, 118 U.S. 356, 30 L.Ed 220 (1886), the United States Supreme Court stated:
"Though the law itself be fair on its face and impartial in appearance, yet if it is applied and administered by public authority with an *310evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution,"
30 L.Ed. at 227
It is violative of the guarantees of due process and equal protection to enforce a law in a discriminatory fashion. This is exactly what the Board of Election Supervisors has done in this case.
In the case of United States v. Kennebec Log Driving Co., 530 F.2d 446 (1st Cir., 1976), wherein Kennebec challenged a statute of the United States claiming that the act would allow capricious application , the Court stated:
"Were this to happen, judicially cognizable defenses exist to deal with such uses of prohibitive powers. Discriminatory and selective enforcement would be vulnerable to legal challenge." Citing Yick Wo.
530 F.2d at 449
*311This Court feels that the Board of Election Supervisors has selectively applied its powers to decide candidates1 qualifications. Had the Board checked all the candidates' qualifications or even a substantial number of the cnadidates1 qualification, this would not be the case.
To protect a party from this selective application of the law, as stated in United States v. Kennebec, a person can challenge the enforcement in court.
The selective application of the power to disqualify candidates in the Navajo election requires this Court to void any use of the power by the Board of Election Supervisors. To reach any other result would be to take all meaning from the 1368 Indian Civil Rights Act.
V.
The opinion of the Board of Election Supervisors, issued the 19th of September, 1978 disqualifying Peter H. Des wood, Jr., from running for Navajo Tribal Councilman from Lukachukai is REVERSED.
The Board of Election Supervisors is ordered to place Mr, Deswood on the Lukachukai ballot for Navajo Tribal Councilman.
The Stay of Execution, issued the 26th day of October, 1978 is VACATED. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502783/ | PER CURIAM
I.
On August 9, 1978, a primary election was held throughout the Navajo Nation to select candidates for the Chairman of the Navajo Tribal Council and to select candidates for Navajo Tribal Councilman. In the Shiprock Chapter, the voters selected Donald Benally, Jimmy Bidtah and Virgil Kirk, Sr. as the candidates for the two Navajo Tribal Council positions. The results were certified by the Navajo Board of Election Supervisors on August 22, 1978.
On August 1, 1978, three members of the Shiprock corrs-*313munity, Perry Garnenez, Calvin Cooiidge and Carl Todacheene, wrote the Board stating that the Appellant was not thirty years of age and therefore was not qualified to be a candidate for Tribal Councilman.
Mr. Raymond Lancer wrote the Appellant on August 16, 1978, stating that a complaint had been filed and giving Mr. Benally ten days to answer the complaint and request a hearing.
The Appellant responded on August 17, 1978, stating that he was qualified, and stating that others under the age of thirty had been allowed to serve on the Tribal Council. Mr. Benally also submitted various affidavits and documentary evidence in an attempt to prove he was thirty.
On August 21, 1978, Mr. Lancer wrote the Appellant that a hearing would be held on August 29, 1978.
Subsequently, the three complaining parties withdrew their complaint, but the Board of Election Supervisors proceeded with the matter on its own initiative.
On September 5, 1978, an opinion of the Board of Election Supervisors was issued disqualifying Donald Benally from being a can - didate on the grounds that he was not thirty years of age. The Board stated in its opinion that it had jurisdiction pursuant to 11 NTC 51-52 and the Rules and Regulations for Disqualification' Proceedings adopted *314by the Board, The opinion bore only Mr. Lancer's signature and did not state whether the other members of the Board agreed with or disagreed with the opinion.
Appellant filed his appeal with this Court on September 8, 1978, and a full hearing was held on October 5, 1978.
II.
This Court has limited the issue before this Court to a determination of whether the Board of Election Supervisors possessed the authority to disqualify a candidate.
III.
Prior to the Primary Election, a special pamphlet was issued entitled "Navajo Tribal Code, Title 11; Election Law of The Navajo Nation, 1978 Edition11. The special pamphlet was apparently printed by the Navajo Board of Election Supervisors. This special pamphlet contains the entire election law of the Navajo Nation, comprised of resolutions CMA-32-74, CJY-70-74, CMY-42-78 and CJN-49-78.
The special pamphlet contains its own numbering system for the sections, which are not identical to that of the Navajo Tribal Code, 1969 or 1977 editions. However, the sections in this special pamphlet, by implication, repealed Title 11 as contained: in the 1969 and 1977 editions of the Code. For example, 11 NTC 4 (1969 edition) is reprinted as 11 NTC 1.2 in the 1978 special pamphlet.
*315Therefore, the Board of Election Supervisors cannot rely on 11 NTC 51 and 11 NTC 52 (1969 edition) as a bases for their authority to decide candidate qualifications and to disqualify persons duly selected from running for office.
The specific power of the Board of Election Supervisors is contained in 11 NTC 1.6 which states in part:
A. The Board of Election Supervisors of the Navajo Tribe is hereby established as a continuing body having the duty of maintining the register of voters of the Navajo Tribe, of conducting all Tribal Elections, general and special, for the purpose of choosing a Chairman, Vice-Chairman, Members of the Navajo Tribal Council, and of deciding disputes arising in connection with Tribal elections.
No other part of the election law specifically grants the Board of Election Supervisors the power to disqualify candidates.
The power granted to the Board in the section reprinted above was to conduct all elections and decide disputes arising therefrom.
The Board's own rules and regulations state that only certain parties may initiate an election contest:
*316A. The only parties entitled to initiate an election contest shall be:
(1) A person who was a candidate for the same office at the election whose result he wishes to contest, with respect to the Primary and General elections;
(2) A registered voter from the election community with respect to chapter nominations for council delegate; or
(3) A registered voter with respect to declarations of candidacy for the Office of Chairman, Navajo Tribal Council.
Because the three original contestants withdrew their petitions, the only party bringing the action was the Board itself. Thus, no proper party was bringing an election contest and the Board therefore cannot claim jurisdiction based on the above section.
Lacking the power to initiate an election contest on its own, the only manner in which the Board could proceed was if they possessed disqualification powers.
As was stated earlier in this opinion, the Navajo Tribal Council did not give the Board of Election Supervisors disqualification powers under the law governing the 1978 election. The reason the Tribal Council did not grant the Board this power is obvious: If the *317Board did possess the power to initiate disqualifications and decide them, the Board would be the prosecutor, investigator and judge. The problem with that kind of procedure is obvious from this case where counsel for the Board acted as a prosecutor, and then aided, or his law partner aided, the Board in arriving at a decision. In the opinion of this Court, the actions of the Board's Counsel in this case violates Canon Nine of the Code of Professional Responsibility which states:
A Lawyer Should Avoid Even the Appearance of Professional Impropriety
More specifically, DR 9-101 states in part:
DR 9-101 Avoiding Even the Appearance of Impropriety.
(A) A Lawyer shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity.
By aiding the Board in arriving at its decision, or by having or allowing his partner or subordinates to aid the Board, the Court feels that the Board's counsel violated this disciplinary rule.
Apparently, the Board claims that the disqualification proceeding was proper under the authority granted to decide "election disputes". Because the Board's own rules require a contesting party and the Board cannot be a contesting party, it is evident that no dispute exists.
*318What is also obvious is that the Board could not even adopt rules allowing the Board itself to be a contesting party because that would exceed the grant of authority given the Board, It is well settled that the Board cannot on its own extend its jurisdiction. Federal Trade Commission v. Raladam Co,, 283 U.S, 643, 75 L. Ed. 1324 (1931); Greeley v. Thompson, 10 How (U.S.) 225, 13 L. Ed. 397.
IV.
It is the opinion of this Court, for the reasons stated, that the Board of Election Supervisors was without the authority to initiate disqualification proceedings on its own and without authority to disqualify any candidate. The question of whether the Board should possess the authority is a question which should be addressed by the Navajo Tribal Council.
The decison of the Board of Election Supervisors, issued September 5, 1978, is REVERSED.
The special pamphlet entitled "Navajo Tribal Code, Title 11; Election Law of the Navajo Nation, 1978 Edition" is recognized as the complete election law of the Navajo Nation, repeating Title 11, Chapter 1, 1969 and 1977 editions of the Navajo Tribal Code.
The Board of Election Supervisors is ordered to place Donald Benally's name on the ballot as a candidate for Shiprock Tribal Councilman.
*319This written opinion supercedes the "Findings and Order” issued in this case on October 12, 1978.
BECENTI, Associate Justice, concurring in the result
I do not reach the question of whether or not the Board of Election Supervisors possesses the power to disqualify a candidate.
In my opinion the documentary evidence submitted by all sides to this controversy is of questionable validity. Record keeping on the Navajo Nation has been poor over the years, and l do not feel this Court should rely on any of this "evidence" as a result. Thus, I must accept Donaly Benally's word that he is thirty years of age.
I therefore agree with the result reached by my colleagues ordering Mr. Benally's name into the ballot. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502785/ | WALTERS, Associate Justice
I.
This Case is on appeal from a judgment of the Window Rock District Court awarding damages to plaintiff of $104,864.14 on two contract causes of action, plus costs in the amount of $25.00, and denying relief for a third contract action.
The facts of the case are as follows: Plaintiff entered into three separate architectural contracts with the defendant in 1970, 1971 and 1972. These contracts, were tied with the construction of low-income housing by the defendant. The plaintiff was to be paid a certain fee, usually computed as a percentage of the project cost. Numerous disputes between the parties took place during this period of time, with the end result being a lawsuit filed by the plaintiff against the defen*326dant on March 30, 1978 which alleged that the plaintiff had not been fully paid for any of the contracts.
The defendant argued that the plaintiff had not fully performed the 1971 contract, justifying their withholding of $13,662.00 from the payment due under the 1370 contract. It further argued that the 1972 contract was never legally binding, as it had never been ratified by the United States Department of Housing and Urban Development (HUD), as required by 24 CFR 801.211.
Judge Merwin Lynch found that plaintiff had fully performed under the 1971 contract and ordered the defendant to pay plaintiff the $13,662.00 due under the 1970 contract. He also found that the plaintiff had otherwise been fully paid under the 1971 contract. Judge Lynch ruled that the 1972 contract was valid, notwithstanding lack of HUD approval, as the plaintiff had never been informed of such a condition precedent. He did not award any direct damages, as he found no services had been performed, but he found that the plaintiff had detrimentally relied on the contract and awarded $91,242.14 in consequential damages.
Defendant appealed.
II.
The defendant raised numerous issues in his appeal, but for purposes of simplicity and clarity, they can be. summarized as *327follows;
1. Did the plaintiff fully perform the 1971 contract?
2. Was the plaintiff fully paid for the 1971 contract?
3. Was the 1972 contract valid as a matter of law?
4. Assuming the 1972 contract was not valid, can the plaintiff still recover under a theory of detrimental reliance?
III.
The first two issues involve primarily questions of sufficiency of evidence. We have reviewed all the evidence presented in the trial court below and conclude that there was sufficient evidence to uphold Judge Lynch's findings on these points. We therefore affirm his judgment awarding the plaintiff $13,862.00 due under the 1970 contract.
IV.
The third issue involves the validity of the 1972 contract. All the parties in this action seem to agree that HUD approval was necessary in order for there to be a binding contract. The reasoning behind this is simple. Since HUD tunds were being used to construct these buildings, it is only natural that the agency would want to have the final say in approving all plans and specifications, as well as the legitimacy of the expenses to be incurred.
The plaintiff argues that the contract should still be considered binding because the parties concerned acted as if there .were a *328contract. This is rather specious logic, however. The whole purpose of the regulation in question is to prevent parties from expending funds, running up expenses and committing themselves to some project which in the longrun may not bear fruition. If parties can get around legal requirements simply be ignoring them, there is no purpose in having such legal requirements in the first place.
We therefore disagree with Judge Lynch that there was a legally binding contract in this case. For the reasons outlined in Part V below, however, our conclusion here does not lead us to overturn the judgment awarding consequential damages.
V.
An examination of the behavior of the two parties to this case, especially that of the defendant, is the deciding factor in this matter. Prior to the termination of his employment as Executive Director of the Navajo Housing Authority, Pat Chee Miller acted as if he were a child let loose in a candy store. Money was spent with little or no regard to economic necessity or accountability to the Federal government. The plaintiff was repeatedly led to believe, in this and prior contracts, that HUD approval was a mere "formality", an "approval" in name only and had always come through before. Miller fostered this belief in his communications to the plaintiff, by his insistence that the plaintiff maintain an office in Window Rock even though the contract had not been approved and by going down to the Bank of New Mexico with the plaintiff and agreeing to an assignment of *329the contract. In short, he did everything possible to cause the plaintiff to rely on the contract and did little or nothing to warn him of the legal dangers involved.
It must have come as quite a shock to the plaintiff to discover that HUD approval was not a mere "formality" as he was led to believe but was a very real requirement, that could be - and in this case, was - refused. No doubt the plaintiff will be more careful in the future in entering into agreements with government agencies. We cannot, in good conscious, in the face of the irresponsible behavior of the defendant's agent, not allow the plaintiff to recover his consequential damages. If ever there was a situation where detrimental reliance occured, this is the case. We therefore agree with Judge Lynch's award of consequential damages, which upon review, we believe to have been accurately determined.
VI.
For the reasons stated above, the judgment of the District Court awarding damages to the plaintiff of $104,864.14, plus costs in amount of $25.00, is AFFIRMED.
BLUEHOUSE, Associate Justice, concurs. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502786/ | NESWOOD, Acting Chief Justice,
concurring in Part and Dissenting in Part
l agree with my learned colleagues in Part l-lV of the majority opinion, and with the awarding of $13,662.00 due under the 1970 *330contract, but must strongly dissent as to Part V and the awarding of consequential damages.
There is rio doubt that in this case the plaintiff knew about the requirement of HUD approval. He as much admitted this in his Appellate Brief. Even lacking hard proof on this question, it is simply beyond comprehension how an architectural firm which regularly transacts business with government entities can claim ignorance of appropriate govermental regulations. The fact remains, even if we can assume that the plaintiff was unaware of HUD approval, he should have been aware.
I would point out at this time that detrimental reliance is an equitable remedy, to be applied only when the party in question has justifiably relied on the other party's actions or words. The end result of the majority opinion will be, I fear, to encourage people to remain ignorant of, if not to outright ignore, the law in this area.
I would therefore AFFIRM the judgment of the District Court in its award of damages of $13,662.00, but would REVERSE the award of $91,242.14. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502787/ | NESWOOD, Acting Chief Justice
This case is on appeal from a judgment of the Shiprock District Court that found that the defendants have been trespassing upon the customary use area of the plaintiff and which designated use area 0498 as belonging to the plaintiff.
Defendants appealed.
The sole issues heard on oral argument were whether all administrative remedies were exhausted and whether the evidence supports the findings of the District Court. For the reasons explained below, we did not reach the second issue.
This Court concludes that remedies were exhausted before *332the Beclabito Chapter and the .District 12 Grazing Committee. The Chapter passed a resolution on October 10, 1976 upholding the rights of the defendants. The Grazing Committee was given six months in 1975 and 1976 to resolve this dispute. In a letter .dated May 27, 1976 and filed with the District Court on June 7, 1976 the Committee admitted it could not reach a decision and asked the Court for an extension of time. The matter was subsequently resubmitted to the Committee again and they again failed to reach a decision, at which point the District Court took jurisdiction over the action and rendered its judgement.
While it is true that the District Court, on resubmitting this case to the Grazing Committee, did not give the Committee sixty (60) days as called for in Brewster v. Bee, Navajo Court of Appeals (March 3, 1977), we believe that the period of time that was given, when coupled with the prior six month period, was more than adequate. The District Committee having failed to reach any sort of agreement, we deem the administrative remedies at this level to be exhausted.
The one committee that has not dealt with this matter, however - which has, in fact, consistently refused to do so - is the Resources (Central) Committee. This level of administrative remedy was not exhausted and therefore the District Court did not properly have jurisdiction over this subject matter.
The judgment of the District Court is REVERSED. *333The matter is REMANDED the the Resources (Centra!) Committee, if that Committee fails to reach a decision within sixty (60) days of the date of this opinion, the plaintiffs administrative remedies will be deemed to be exhausted for purposes of appeal to the District Court.
BLUEHOUSE, Associate Justice, concurs. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502788/ | WALTERS, Associate Justice,
dissenting
I respectfully dissent. In my opinion, this case has gone on long enough in both the administrative bodies and the Court.
The District Grazing Committee has been given more than ample time to reach a decision. In fact, the time they have been allowed exceeds the period mandated by our dec!son in Brewster v. Bee.
Over this same period of time, the Resources (Central) Committee has repeatedly refused to act as well. I do not see why we should now give the Resources Committee another sixty (60) days during which they will probably refuse to act again.
Additionally, remanding this case to the Resources Committee and then allowing appeal to the District Court once again may impose an an insurmountable financial burden on the plaintiff.
Because I believe the evidence in this case supports the *334findings of the District Court and for the reasons stated above, 1 would AFFIRM the decision of the Shiprock District Court. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502789/ | ORDER DISMISSING APPEAL.
The Court, having reviewed its file in the above-entitled matter, and having been informed of new facts subsequent to the Notice of Appeal, finds:
1. On June 12, 1978, the Window Rock District Court vacated its order of the 26th day of April, 1978.
2. The order of April 26, 1978, was the order being appealed.
Since the Appellant requested a trial de novo and the District Court's order in effect granted that relief, the Court, on its own motion, hereby DISMISSES the appeal.
Dated this 24th day of August, 1978.
Marie F. Neswood Acting Chief Justice of the Navajo Nation | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502793/ | ORDER DISMISSING APPEAL
The Appeal in the above entitled matter, filed the 30th day of October, 1978, having been received and considered, the Court finds:
The Appeal in this matter was obviously premature as the Appellant subsequently filed his own motion to dismiss several days later. An Appellant should fully pursue his District Court remedies before appealing.
IT IS THEREFORE ORDERED that the Appeal in the above matter be and it hereby is DISMISSED.
Dated this 17th day of November, 1978.
Marie F. Neswood Acting Chief Justice of the Navajo Nation | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502794/ | ORDER DISMISSING APPEAL
Defendant filed a Notice of Appeal in the above-entitled action on October 26, 1978. On examining the record of the District Court, it is apparent that defendant never filed a Motion for Reconsideration, as required by Rule 5(d), Rules of Appellate Procedure.
It is therefore ORDERED that this appeal be DISMISSED.
The Stay of Execution issued the 31st day of October, 1978, is hereby VACATED.
Dated this 19th day of December, 1978.
Marie F. Neswood Acting Chief Justice of the Navajo Nation | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502795/ | JOHN, District Judge
NATURE OF THE ACTION
Ths is an action in which plaintiffs, who are members of the Navajo Tribal Council, are seeking an application for a permanent injunction to enjoin Peter MacDonald, individually and as Chairman of the Navajo Tribal Council and Eldon Hansen, in his capacity as Con-*342trader of the Navajo Nation from expending any monies from the $70,000.00 which was by Tribal Council Resolution appropriated on April 5, 1977 for the defense of defendant MacDonald in a criminal case then pending against him in the United States District Court in Phoenix, Arizona.
SUMMARY
On April 4, 1977, a special session of the Navajo Tribal Council was called by defendant MacDonald and the Navajo Area Director of the Bureau of Indian Affairs.
The agenda prepared for the special session contained five substantive items. What was later enacted as Resolution CAP-32-77, and which gave rise to the controversy, was not one of those items. The Tribal Council approved the agenda by a vote of 54-0.
After the special session was underway, the Advisory Committee approved an addition to the agenda consisting of three items. One of those items was a resolution amending the budget for fiscal year 1977 to appropriate $70,000.00 for legal fees and expenses for defendant MacDonald's defense in a criminal case then pending against him in United States District Court in Phoenix, Arizona.
The proceedings for which the funds appropriated by CAP-32-77 were sought arose out of an indictment issued February 9, 1977 charging defendant MacDonald with eight felony counts. The *343indictment alleged that defendant MacDonald, in his position as Chairman of the Navajo Tribal Council, defrauded an Arizona utility company doing business with the Navajo Tribe by obtaining money from the company for personal gain.
The Advisory Committee never did see the proposed resolution CAP-32-77 but approved its addition to the agenda for the special session; however, the Tribal Council never approved such an addition.
On April 5, 1977, the Council debated the above resolution at considerable length before approving it by a vote of 35 in favor and 19 against. Resolution CAP-32-77 was never presented to the Budget and Finance Committee of the Navajo Tribal Council.
During the debate on the resolution, the Chairman of the Budget and Finance Committee, Raymond Smith, attempted, without success, to gain the floor to raise a question as to why the Budget and Finance Committee was by-passed, but defendant MacDonald, who was presiding at the session, refused to acknowledge him and the resolution thus passed.
This action was filed on May 3, 1977, and a temporary restraining order was issued on the same day restraining defendant Hansen from paying out any monies pursuant to CAP-32-77, and the Court set May 18, 1977 at 2:00 p.m. for hearing the injunction.
*344Defendants MacDonald and Hansen filed motions for change of Venue and Disqualification of the presiding Judge on the 17th day of May -- a day prior to the hearing and the motions were dented. This Court heard arguments of both counsel and adduced testimony from plaintiffs and other witnessess on May 18, 1977.
CONTENTION OF THE PARTIES
Plaintiffs contend that the appropriation pursuant to Resolution CAP-32-77 by Navajo Tribal Council absent Budget and Finance Committee review and recommendation is contrary to the laws of the Navajo Nation, and although the Navajo Tribal Council is the law making body of the Navajo Nation, they cannot place themselves above the laws they create and cannot act beyond the scope and authority of the laws they create without first duly amending or repealing those laws.
Plaintiffs further contend that the above referred to acts of the Council violate the mandate of 2 Navajo Tribal Code 365 and any appropriations such as CAP-32-77 in violation of Council procedures and the substantive law of the Navajo Nation is unlawful and void.
Defendants contend that the Navajo Tribal Council, being the only law making body in the Navajo Nation, has the Supreme Authority to do whatever they wish or desire absent any constitutional restriction on their powers, and their legislative actions are above judicial review, that this Court would be dictating legislation to the *345Council if it decides this case.
ISSUES
There are a number of minor issues presented to this Court and will be considered in the opinion. The major issue is;
1. Absent any constitution, can the Navajo Tribal Council, as the supreme law making authority on the Navajo Nation, pass and enact legislation in violation of its procedural process and/or the mandate of the Navajo Tribal Code without first duly amending or repealing it?
The plaintiffs filed suit in the District Court of Shiprock, Navajo Nation, New Mexico to enjoin the allegedly unlawful expenditure of the Navajo Tribal Trust Funds under CAP-32-77. The complaint alleged that defendant MacDonald, as Chairman of the Navajo Tribal Council, was indicted by a Federal Grand Jury charging him with felony counts of defrauding an Arizona utility company which was doing business with the Navajo Tribe, and as result of that indictment the Navajo Tribal Council passed and approved Resolution CAP-32-77, which amended fiscal year budget '77, appropriating $70,000.00 of trust funds of the Navajo Nation for the legal defense and expenditures of defendant MacDonald.
This controversial legislation was the subject of a lengthy debate during the second day of a duly convened special session of the *346Navajo Tribal Council on April 5, 1977. During this lengthy debate, plaintiff Raymond Smith, Chairman of the Budget and Finance Committee, attempted, several times without success to gain the floor to ask why the Budget and Finance Committee was by-passed in this instance as the matter dealt with a interim budget revision. Defendant, MacDonald, who was presiding over the session, refused to acknowledge plaintiff Smith. The resolution was then approved by simply a majority vote of 35 in favor and 19 opposed.
On April 28, 1977, the acting Area Director of the Bureau of Indian Affairs approved the resolution.
On May 3, 1977, this suit was filed and a temporary restraining order was granted the same day enjoining defendant Hansen from paying out any sums pursuant to CAP-32-77; however, the temporary restraining order was not served until May 11, 1977 for reasons not known to this Court.
On May 17, 1977, Defendants moved to dissolve the temporary restraining on the grounds that the temporary restraining order was issued in violation of Rule 18 of the Civil Procedure requiring notice and hearing; the temporary restraining order was issued in violation of Rule 18 of the Civil Procedure requiring the applicants to post a security bond; the full Navajo Tribal Council has the authority to approve the expenditure of Tribal funds to meet "emergent and unusual circumstances."; the Area Director of the Bureau of Indian Affairs has no power to approve or disapprove the agenda for any *347session of the Tribal Council; the complaint fails to join as indispensable parties, the real parties in interest, the Navajo Nation, the Navajo Tribal Council and the United States; the provisions of 25 USC § 81 are inapplicable to any contract by which Peter MacDonald retains counsel to represent him in a criminal trial and the subject matter is a non-justicable political question. Defendant also filed motions to change venue to Window Rock District Court and to disqualify the Shiprock District Judge.
This Court must first deal with the motions for venue and disqualification. Defendants' motion for change of venue was received by the Court a day prior to the hearing on May 17, 1977. Since a trial date had been scheduled prior to the filing of the motion, and that it was received one day prior to date for hearing, arguments on the motion was held the same day the injunction was heard. Defendants' motion was denied. Defendants' contention that Rule 26 mandates that the action shall be filed in the district in which defendant resides is taken into consideration; however, venue is proper in this Court, for the convenience of the parties and witnesses, and furthermore it would be inappropriate to require every person seeking redress against tribal officials to travel to Window Rock to prosecute an action.
Defendants' motion to disqualify the District Judge, on the grounds that Counsel for plaintiff Donald Benaily is a nephew to the judge, is also denied on the grounds that such a relationship does exist but only in traditional Navajo clan relationship.
*348The issue of the temporary restraining order being issued in violation of Rute 18 requiring the posting of a bond requires little attention from this Court. The plaintiffs are members of the Navajo Tribal Council with the exception of plaintiff Mary Wallace. Under our rules, the posting of bond is not required of officers of the Navajo Nation. The Court does, however, agree in part with defendants' contention that the temporary restraining order was issued in contra certain requirements in Rule 18; specifically, the requirement of the certification of counsel as to why the temporary restraining order should issue without notice. Since defendants did not move to dissolve within the two day requirement set forth in Rule 18, he has waived his rights to dissolve.
Defendants have also advanced the argument that the Navajo Tribal Council, Navajo Nation and the United States are indispensible parties. There is no need for joinder of the United States or of any other members of the Tribal Council, as they will not be adversely affected by the outcome of this suit. The Navajo Tribe has voluntarily appeared and fully participated in this action so that no joinder need be ordered.
During the course of this suit, all parties found no disagreement as to the supreme law making authority in the Navajo Nation being vested in the Navajo Tribal Council. This Court also vigorously supports that contention. The Power and Authority of constitutionless governments such as the Navajo Tribal Government was compared as similar with the law of England and Australia by defendants' counsel-~law making authority is exclusively that of the governing *349legislative body. In this case the argument which purports the Navajo Tribal Council, being the supreme law making authority, has unchecked power to enact any legislation it deems fit, even those which violate existing law, makes this Court very uneasy in view of the ancient phrase from 11 Coke, 74 NIHIL ALIUD POTEST REX QUAM QUOD DE JURE POSTEST (The king can do nothing except what he can by law do).
It is well settled that the Navajo Nation is not a lawless Nation. Its governmental powers are limited by laws--laws enacted by the Congress of the United States, by the Navajo Tribal Council (Codified in the Navajo Tribal Code), and the Treaty of 1868.
The Navajo Tribal Council, in an effort for more efficiency, established for itself various procedural mechanism by which proposed resolutions are to be brought before it for consideration--they were subsequently codified in the Navajo Tribal Code. Once the Council passes and approves any resolution binding themselves by that law--they are bound by such law--they are then bound by such law and can only do what by law they themselves established allows them to do. The Navajo Tribal Council cannot violate their laws nor can they place themselves above the laws they create. If such a government were to exist in the Navajo Nation, it would violate all the principles of a democratic government.
Tribal Council Resolution CAP-32-77 was an interim budget revision as the term is used in 2 Navajo Tribal Code § 365. The lan*350guage of that section of the code is not ambiguous, it clearly mandates that such an interim budget revision shall be reviewed for approval or disapproval by the Budget and Finance Committee of the Navajo Tribal Council before it is submitted for Tribal Council consideration, in this instance, the Budget and Finance Committee did not have an opportunity to exercise their mandate and the budget revision in the form of CAP-32-77 went directly from the Advisory Committee to the Council. It was stipulated by counsel for defendants that the Code § 365 clearly is the controlling factor in this matter.
The passage of CAP-32-77 was in violation of 2 Navajo Tribal Code § 365 there being no lawful basis existing for any departure therefrom. This Court does not dispute the authority of the Council to expend funds from the Tribal Trust account for "emergent or unusual circumstances." However, no testimony offered by defendants that the situation giving rise to CAP-32-77 was an emergency or an unusual circumstance. There was testimony that the Council has in the past appropriated monies without review by the Budget and Finance Committee. The consensus is that the Council normally approves community projects grants without Budget and Finance Committee review, or during severe drought or storm conditions such as the 1968 devastating snow storms.
The manner in which the Council approved CAP-32-77 is a radical departu re from that established practice. The appropriation for community projects or drought and other storm relief benefits multitudes of Navajos--not just one individual as in Resolution CAP-32-77. In this *351regard, Resolution CAP-32-77 constitutes appropriation of public funds for a purely private purpose.
It is a fundamental principle of law that public funds may not be used for private purposes, and that any such use must be declared invalid, and that principle must apply to funds of the Navajo Tribe.
The question of misappropriation of tribal funds by the Tribal Council is not a non-justiciable political question; the Navajo District Courts are fully able to measure the action taken against the existing law, and to determine whether the law has been violated, and when called upon to do so in a proper case, the Courts may not decline the obligation. Thus, as in this case for Navajo District Courts to rule as to the legality of an action of the Tribal Council, it no violation of the principle of separation of powers in the Tribal government.
This case presents appropriate grounds for invoking this Court's equitable powers to prevent any further expenditures of Tribal Funds under CAP-32-77, in that there is no adequate remedy at law to prevent such funds from being disbursed and once they are disbursed the likelihood is that they could not be recovered.
Resolution CAP-32-77 was unlawfully brought before the Tribal Council, because of the failure to comply with 2 Navajo Tribal Code § 365, and it is unlawful on its fact in that it appropriates public monies purely for private purpose; therefore, a permanent injunction is granted. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502796/ | NESWOOD, District Judge
On September 29, 1973, the defendant Mary Tso Vandever purchased a mobile home from Plaza Mobile Homes In Farmington, New Mexico with a downpayment of $2,000,00. The plaintiff was to make one hundred and twenty (120) payments of $153.06. The terms of the installment contract also included property insurance at a charge additional to the purchase price. A copy of the insurance policy that resulted from the contract was never sent to the defendant.
In accordance with the terms of the contract, the entire contract was assigned to the plaintiff, General Electric Credit Corporation (GECC).
The defendant continued to make payments through Oct*353ober, 1976, at which time she decided that she no longer desired to own the mobile home and that she wanted it transfered to a Gladys Antone. The arrangements agreed upon by the defendant and Miss Antone are unclear, except that Miss Antone was to assume the monthly payments.
Beginning in November, 1976, Gladys Antone made payments to GECC which were accepted by the plaintiff. Subsequently, Miss Antone was informed by a representative of GECC that she should apply for a transfer of credit and that there would be no problem in effectuating that transfer of credit.
On April 14, 1977, Miss Antone received a notice from the plaintiff entitled "Statement of Credit Denial, Termination Or Change". Neither of the two boxes under "Description of Adverse Action Taken" were checked. The boxes under "Principal Reason(s) For Adverse Action Concerning Credit" were also unchecked.
Because the notice contained no statement that her credit had been disapproved, and because representatives of GECC had assured her there would be no problem with the transfer of credit, Miss Antone believed there was no problem with the transfer and continued making payments.
In July, 1977, the plaintiff, without stating a reason, refused to accept any further payments from Miss Antone.
*354On October 3, 1977, the plaintiff commenced this action asking for repossession of the mobile home. The summons was not served until December 20, 1977. Answers and counterclaims were filed on February 6, 1978.
During the pendancy of this action, on January 28, 1978, it appears that the plaintiff or its representatives attempted to repossess the mobile home in question. This repossession was prevented by the Navajo Police.
On June 26, 1978, the defendant filed a motion for judgment on the counterclaims alleging that the plaintiff had failed to answer the counterclaims in a timely manner.
A hearing was held on July 18, 1978 in the Crownpoint District Court at which both parties presented evidence and witnesses.
The first matter which must be disposed of by this Court is the Motion for Judgment On the Counterclaims, which is really in the nature of a motion for default judgment. Rule 4 of the Navajo Rules of Civil Procedure requires that an answer to the complaint be filed within thirty (30) days. The rule contains no requirement that an answer be filed to any counterclaims and no requirement that any such answer contain the party's signature.
While it is probably preferrable that answers be filed to counterclaims, this Court cannot enforce such a rule unless It is in *355the Rules of Civil Procedure. Therefore., the Court denied this Motion verbally and will not reach any of the other issues raised surrounding this motion.
It is obvious to the Court that payments on the mobile home were not current as of the date of the filing of this action and no effort has been made to make them so. The last time this account was current appears to be August, 197?. The question which this Court must address is whether the actions of the plaintiff contributed to the causes for the overdue payments. The Court must also ascertain whether repossession is in order.
The actions of GECC in this matter are difficult to understand. The notice denying the transfer of credit is unclear and GECC continued to accept Gladys Antone's payments in spite of the fact that they claimed to have denied the transfer. It seems to this Court that the defendant was entitled to believe for a period of time that the transfer had taken place.
While the defendant may not have taken all necessary steps to ensure that the proper transfer had indeed taken place, the seller must have been aware that Mrs. Vandever was a woman who understood little English and probably would not have understood the requirements of transfer. The fact that GECC was an assignee of the contract does not alter the fact that certain allowances should have been made for this situation. GECC merely stands in place of the seller and is deemed *356to have his full knowledge.
To allow repossession of the mobile home would be to allow GECC to profit from the confusion it created. On the other hand, this Court does not feel the defendant should be allowed to receive something for nothing. At the time she purchased the mobile home, the defendant fully expected to make all the payments. This Court sees no reason that she should not expect to honor that committment now.
Since GECC refused the transfer, this Court will not apply Miss Antone's payments to the amount due. Therefore, the defendant is liable to GECC for the monthly payments due from November, 1976 until the present. As Miss Antone was not a party to this suit, this Court will decline to order GECC to refund her money she paid. If Miss Antone desires a refund, she may sue GECC.
Accordingly, the Court will not order repossession of the mobile home but will require that payments be brought up to date. The backpayments due through July, 1978 total $3,214.26.
The defendant has presented this Court with several counterclaims, three of which can be disposed of immediately.
The first of these counterclaims is that the transaction violated the provisions of 15 U.S.C. 1601 et seep and specifically the regulations thereunder, 12 CFR 226.4 and 12 CFR 226.402.
*3577 NTC 104 mandates that the courts of the Navajo Nation apply federal laws. Therefore, it is apparent that this Court does have jurisdiction over the counterclaims.
However, as the Navajo Court of Appeals stated in Smoak Chevrolet vs. Barton:
"The cause of action... is created solely by federal law and finds no counterpart in any law of the Navajo Nation. Therefore, the Navajo statute of limitations is inapplicable."
Thus, the counterclaim in this action is barred by the one (1) year statue of limitations contained in 15 U.S.C. 1640(e). In those instances where a court has allowed a longer statute of limitations, there was a state law permitting a setoff after the expiration of the federal limit. See Reliable Credit Services vs. Bernard, 339 So.2d 952 (1976, La. App.); Stephens vs. Household Finance Corp., 566 P.2d 1163 (1977, Okla. ) .
The next counterclaim that can be disposed of is that concerning the alleged repossession attempt. If the defendant had desired to pursue this counterclaim, she should have proceeded under 7 NTC 309. The defendant failed to invoke this section in her counterclaim. Furthermore, this Court would require more proof in this claim were it pursued.
This should not be interpreted by GECC to mean that their action is being condoned. Once a suit is filed in this Court, the entire *358matter is to remain there. Any attempt to repossess property not in compliance with the Navajo law and any attempt to repossess property already the subject of a court action will be dealt with harshly. It may be that the courts of the state of New Mexico are willing to tolerate such actions, but this Court will not.
Defendant's counterclaim that GECC's actions constitute a misrepresentation of a material fact are very similar to the counterclaim this Court will deal with below and is therefore not taken up separately.
The defendant's counterclaim that the seller failed to forward a copy of the insurance policy to her as mandated by N.M. S.A, § 50-15-7 is well taken. N.M.S.A, § 50-15~11(B) provides that no finance charge can be collected if § 50-15-7 is violated.
GECC seeks to avoid the provisions of the New Mexico law by claiming it was the seller's responsibility and not theirs and they are therefore not liable.
While it is true that an assignor may not shift his liability to the assignee, this does not mean the assignor must personally perform all the duties and obligations of the contract. He may delegate the performance of his obligations to another where the other is capable of performing. In this instance, the Court must assume that the assignor (the seller) meant to delegate the performance of the N.M.S.A. *359§ 50-15-7 because the contract states that when it is fully completed and signed and approved by GECC, it will be assigned to GECC.
To reach any other conclusion would mean that the penalty provision of N.M.S.A. § 50-15-11 would have little impact. An assignee such as GECC could avoid compliance with the law by claiming it was the seller's responsibility. A buyer's only recourse would be to sue the seller who no longer holds the contract to recover finance charges. This Court declines to impose this burden on the defendant.
Because the insurance expired on October 26, 1376 and because this Court reads N.M.S.A. § 50-15-11 to mean that finance charges during the insurance period cannot be collected, only those payments between November 21, 1973 and October 26, 1976 are affected.
GECC is ordered to compute and refund to the defendant that portion of those payments made between November 21, 1973 and October 26, 1976 which are interest within thirty (30) days of the date of this opinion.
A final counterclaim that is made by the defendant is that GECC damaged her by using ambiguity as to a material fact or by failing to state a material fact.
In a previous portion of this opinion, the Court stated that it was unwilling to allow the defendant to reap profit due to the con*360fusing situation. The Court is equally unwilling to allow GECC to profit from the confusion it created by accepting Miss Antone's money and leading the persons involved to believe everything was proper.
The only damages that have resulted to the defendant are the fact that she now owes a lump sum of money which she believed Miss Antone would or had paid and the harassment of this law suit. The Court believes that the value of the damages is the total amount of the payments due from November, 1978 through July, 1978, the period of time in which this confusion existed and in which the defendant could reasonably expected she would not be liable for. The Court does not believe that the defendant expected to receive the mobile home without making any further payments.
Therefore, GECC is liable to the defendant on this counterclaim for damages in the amount of $3,214.28, which is the total of the monthly payments from November, 1976 through July, 1978.
The final order of this Court is then as follows:
1. Mary Tso Vandever is liable to General Electric Credit Corporation in the amount of $3,214.26 for backpayments on her mobile home.
2. General Electric Credit Corporation is liable to Mary Tso Vandever in the amount of $3,214.26 for damages caused by the *361confusion created by GECC. Payments are deemed complete through July, 1378 and the next payment due is on August 21, 1978.
3. General Electric Credit Corporation is to compute which portion of the monthly payments from November, 1373 through October 26, 1976 was interest and deposit it with this Court within thirty (30) days of the date of this opinion. The Court will then allow the defendant to examine the calculations and the amount and either accept the refund or show the Court her own calculations within ten (10) days of the date of deposit. In the event of a dispute, the Court will then examine both parties' calculations and make an award without further hearing.
4. Mary Tso Vandever will begin making monthly payments on August 21, 1978 in the amount of $153.06 until the mobile home is paid for. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502797/ | JOHN, District Judge
This is a case of first impression in which the plaintiffs seek damages for false arrest and imprisonment, excessive force, and malicious prosecution. Named as defendants are various employees of the Navajo Division of Public Safety and the Chief Prosecutor of the Navajo Nation, and the Navajo Tribe.
On August 25, 1976, plaintiffs and several others were gathered at the vicinity of the Navajo Tribal Council Chambers during the debate of the Council on the highly controversial Coal Gasification Resolution. Their purpose was to express, to the governing body *363of the Navajo Tribal Government, opposition to the gasification measure. According to testimony, a day prior several persons had occupied the seats of tribal councilmen and prevented the Council from convening; however, it was not established if the named plaintiffs were among those involved and none were arrested.
Plaintiffs had arrived in Window Rock from Shiprock and other areas during the morning and continued to gather in large numbers around the vicinity of the Tribal Council Chambers. During the afternoon the number of people began to decline until there were only a small number of people left, and the remainder of the demonstrators were peaceful.
Sometime during the afternoon Navajo police assigned to the Tribal Chambers were reinforced and formed a cordon line in front of the Chamber to prevent the demonstrators from entering if an attempt to enter should be made; it was during this time plaintiff, Mary Joe Wallace, taunted the officers with a "cane". The Council was in session during this episode. The time is not specific but according to testimony sometime between 5:00 and 6:00 the sound of shattering glass and the uproar of the crowd was heard in front of the Tribal Council Chambers which resulted in the abrupt adjournment of the Council.
After the adjournment of the Council, police were summoned to the rear of the Council Chambers and they assembled into two squads. One squad was instructed to open the rear doors to the police panel wagons and the other squad instructed to arrest those demon*364strators not obeying the order to disperse.
After the formation of the two squads, an order to disperse was given in Navajo and English languages through a voice amplifier known as a "voice box". When the demonstrators did not obey the command to disperse (the demonstrators were given five minutes to disperse) the police moved in and proceeded to make arrests of anyone remaining in the vicinity of the Council Chambers including those leaving.
The named plaintiffs were arrested at various locations in the vicinity of the Council Chambers without warrants. All of the plaintiffs except Edward Smith were arrested and detained in excess of twenty-four (24) hours. Edward Smith, a juvenile, was taken to Hogan Hozhoni.
After the arrests were made, plaintiffs were booked, fingerprinted and "mugged". Criminal charges were later filed by the arresting officers and at a subsequent hearing on these criminal charges a disposition was made by the Window Rock District Court in favor of the plaintiffs. As a result, plaintiffs are suing for damages for false arrest, false imprisonment, and use of unnecessary force by police in affecting the arrests. Defendants answered denying various allegations made by plaintiffs but admitted to the fact that criminal charges were brought against plaintiffs but were not successful as they were adjudicated in favor of plaintiffs. Defendants affirmatively plead that the Indian Civil Rights Act and 1 N.T.C. §§ 1,4,6, and 8 provide *365for a cause of action only against the Tribe and not employees of the Tribe in individual capacities; the Navajo Tribal Prosecutor is immune from liability in that he acted within the scope of his duties; the officers reasonably believed that a crime had been committed and were privileged to arrest plaintiffs. Additionally, defendants filed a counterclaim but this was later waived by defendants and need not be considered in this opinion.
During the preliminary hearing, defendant, Navajo Tribe, moved to be dismissed raising the defense of sovereign immunity and argued it cannot be sued without its permission and, in the instant case, did not grant permission to be sued. This Court granted defendant's motion. However, the Court in reviewing its dismissal order and after hearing the facts in this case, has to correct its error in granting defendant's motion to dismiss for the following reason. The doctrine of sovereign immunity has been modified from its absoluteness by the Navajo Nation Court of Appeals. Whether this was a wise move is not the question here, but the issue of absolute immunity is a recurring issue when the Navajo Nation becomes a defendant. The move of other sovereigns from absolute immunity to a qualified immunity or complete abrogation of immunity is weli noted by this Court. Many sovereigns took the legislative process to initiate changes in the doctrine of sovereign immunity and others were judicially imposed.
In our great nation, the doctrine of sovereign immunity has been vastly modified by the Court of Appeals in Halderman Dennison et al. vs. Tucson Gas & Electric Co. et al. at 63-64. The Navajo *366Tribe was considered the "only real defendant..." In this case, the Court of Appeals remanded the case with instructions/1 by then Chief Justice of the Navajo Nation, Virgil Kirk, Sr. In the TG & E case, the Court of Appeals on the one hand recognized and upheld the Tribe's sovereign immunity but it also chose to ignore it by holding the Tribe liable by going beyond the legal fiction and holding the real party liable.
The next issue confronting this court is the unlawful assembly statute of the Navajo Nation—a specific intent statute. The Tribal Council on February 17, 1976 passed and adopted but did not publish Resolution CF-4-76 intended to revise and update the criminal code of the Tribe. Thus certain portions of the criminal code (Title 17 Navajo Tribal Code) were amended; however these amendments were never published and are not now inserted in a pocket supplement of the three volume code. It is undisputed that these newly created crimes are not readily available to the general public. Moreover, the District Courts experienced many obstacles in obtaining a copy of Resolution CF-4-76.
It is equally undisputed that the standards judicially imposed mandate "legislative acts creating crimes must be clear and certain. They must provide reasonable and adequate guidance to a person who would be law abiding so that he can comprehend what activity is to be avoided" ./2
Our unlawful assembly statute is constructed as follows:
*36717 Navajo Tribal Code § 355. Unlawful Assembly.
"Any person who assembles with others for the purpose of instructing or training in guerilla warefare (sic) or sabotage, to engage in rioting or the violent disruption of, or the violent interference with any educational, religious, social, political, recreational, scientific, or an offense punishable by a fine of not more than Five Hundred Dollars, by imprisonment for not more than six months, or both."/3
This Court has exhausted efforts to ellicit legislative history and intent in order to give the phrase "Any person who assembles with others..." adequate interpretation. The conclusion is that the Council did not adequately define what they meant or intended to mean by the phrase "...with others..." By our statute it would take two person engaging in the prohibited acts to constitute an unlawful assembly. The standard at common law and other state statutes require 11... three or more persons..."/4 assembled for an unlawful purpose or for a lawful purpose which would by the unlawful conduct of persons assembled become a unlawful assembly. It would seem then that the phrase ".. .with others..." in 17 Navajo Tribal Code, § 355 would be required to meet at the very least the common law standard and this Court so rules.
The demand for certainty and clarity is necessary for many reasons and here are but a few: “... persons subject to the law cannot in fairness by exposed to governmental controls which trap them." People v. O'Gorman (1937) 274 N.Y. 284, 8 N. E. 2d 862, 110 ALR 1231; ".. .juries and judges cannot reasonably come to conclusion of guilty or innocence when it is uncertain what the lawmakers intended to proscribe. "/5
*368The certainty and clarity in the construction of a criminal statute is a must if it is to meet the fundamental test of due process or the law must be struck down. The responsibility rests squarely on legislative shoulders and an added responsibility in this instant case is the proper publication of the newly created crime. What good is a newly created crime if the knowledge of its existence is known only to the Legislative and Executive Branches of government? Since the conduct of the Navajo public in general is to be controlled by this statute, it is only fair that they receive fair notice. Our traditional and cultural customs mandate such notice because it holds that no one should be held responsible for a prohibited conduct unless that person is first informed that such a conduct or activity will be prohibited. Based upon this traditional concept, this Court concludes that not only must the construction of the criminal statute be certain and clear in its meaning but it must be published. It is common knowledge that the present tribal code has not been current since 1972. and this could very well serve as an impetus for correcting the oversight and negligence of those responsible to keep the publication of ouw laws current. Under the present circumstances in this case, this Court would be remiss in its obligations to the Treaty of 1868, U.S. Constitution, Navajo Bill of Rights and 25 USC §§ 1302 et seq. if it were to enforce the sanctions of 17 N.T.C. § 355 and would be especially remiss in the protection of the Navajo peoples' right to freedom of communication. It should also be remembered that constitutional law mandates that the right of assembly must be given the most liberal and comprehensive construction to protect the peoples' First Amendment Rights, To enforce the sanction of this law upon the facts of this case would put a chilling effect on *369our peoples' First Amendment Rights.
False Arrest and Imprisonment
The issue of false arrest in an action for damages turns on the question of whether the arresting officer was justified in making the arrest. If so, the conduct of the arresting officer is privileged and the action fails./6 If the plaintiff is suing at common law for false imprisonment he must show that he suffered an imprisonment and that it was unlawful ./7
The issue from which this action rises was an exercise by plaintiffs of their rights to free speech and assembly. Since our law is silent on which party the burden lies in this particular kind of action, this Court follows the majority of other courts by establishing the burden upon the defendants to justify their arrests of plaintiffs. It is dear that the defendants were arrested, imprisoned, tried and were acquitted. Therefore, adopting the Dellums standard, the unlawfulness and imprisonment is presumed and the burden is on the arresting officers to show the arrests were privileged.
The Court cannot stress the sacredness of Free Speech and Assembly nor the rights protected under the Navajo Bill or Rights, the 1968 Indian Civil Rights Act (25 USC §§ 1302 et seq.,) and the United States Constitution and how essential it is to a free government. Understandably there are narrow limits placed on these rights to say that these rights are not necessarily absolute. The sovereign may restrict *370these rights in the legitimate interest of protecting and insuring the public peace, property rights and functions of government when these interests of government are threatened.
The testimony of defendants in this case reflected an inconsistency in placing a time of the occurence of violence (the sound of breaking glass and the uproar of the crowd) which culminated in the arrest of the named plaintiffs. Captain Hawthorne (then It. Colonel) testified that he was inside the Council Chambers at about 5:30 P.M. when he heard the breaking glass and the uproar of the crowd. The only broken glass the testimony revealed was that belonging to Harry Tome's vehicle. Harry Tome, Navajo Tribal Councilman from Red Valley, testified that he left the Council Chambers between 5:30-6:30 P.M. with Councilman Robert Billie of Aneth. He gave Mr. Billie a ride to where his vehicle was parked. However, before they reached their destination, Mary Joe Wallace appeared along the passenger side of the vehicle and began striking it with her cane. At almost that instant, another person appeared with a large stone in her hand and threw it at his vehicle striking the windshield and shattering the glass. That person was identified by Mr. Tome as Ada Willie.
This incident apparently gave opportunity to two other persons to throw an object at a passing vehicle or at a police officer. Captain Franklin Morris (then Lieutenant) testified that he witnessed a woman wearing a blue dress, blue blouse and white scarf throwing an object at and striking a passing pick-up truck. That woman was later identified as Marie Smith. Officer Alice Tso testified that she saw *371Marie Smith and Karen Sue Willie throw rocks and that Karen Sue Willie hit her on the hand with an empty aluminum soda pop can. Out of an estimated crowd of fifty or more people, only the above-named plaintiffs were implicated in unlawful conduct. Clearly, then, the testimony utterly failed to show how the conduct of the four justified the declaration of the otherwise peaceful assembly into an unlawful one. To meet the standards imposed by the courts in unlawful assembly, the unlawful conduct or acts of a few cannot change the otherwise peaceful assembly unless the majority concur in the unlawful conduct or acts./8
Therefore, this Court concludes on the basis of their conduct previously stated the arrests and imprisonment of Mary Joe Wallace, Ada Willie, Marie Smith and Karen Sue Willie were lawful and plaintiffs will take nothing under this issue.
There is no question that the acts of the demonstrators, in the Dellums case and the series of demonstrations in the Washington Mobilization Committee case, were concurred in by the majority of the demonstrators making the assembly unlawful but the ruling of the court in these cases was very narrow. In the Washington Mobilization Case, the court in upholding the District of Columbia's failure-to-move-on statute, said "...in applying the statute the police must direct and control members only to the extent sufficient to protect legitimate state interest, which in this case are the free circulation of traffic and the free access of people to public buildings. In ordering the obstructive demonstrators to ‘move on1 the initial police objective must be merely to clear passage, not to disperse the demonstrators, or to suppress the *372free communication of their views. "/9
This Court will not attempt to bridge the vast abyss of facts between this case and the Washington Mobilization case—to do so would require great imagination. But the principles of exercising great care to protect the peoples' First Amendment Rights are not any different from the principles adopted by this Court.
The Washington case also noted that most of those arrested were not violent or obstructive. The plaintiffs were also nonviolent and unobstructive in this case. Even if they were not violent the demonstrators could still be properly arrested for failure to obey a valid dispersal order. The demonstrators in this case were given approximately five minutes to leave but testimony reveals that not everyone heard the order. One of the key elements in determining if fair notice was given is the manner by which an order to disperse is communicated. The idea is to be certain the demonstrators are informed. In this case fair notice means an order to disperse given in both Navajo and English languages over a powerful sound equipment given at least four times, and allowing demonstrators approximately ten minutes to leave. Those who refuse to leave at the expiration of ten minutes may be properly arrested.
After the order to disperse was given, the demonstrators were given approximately five minutes to leave and the named plaintiffs were arrested in process of leaving. In fact, some were dragged out of their vehicles and knocked to the ground. This is not by any stretch *373of the imagination fair notice.
Since the arrests were made by the members of the police under color of a statute passed by the Tribal Council, and since the Executive failed and neglected to keep our criminal code current, the Navajo Tribe due to the negligence or omission of the Executive Branch and since the arrests here in question were improperly motivated, and not undertaken in furtherence of good faith law enforcement, the named defendants, in their capacities as Navajo Police Officers, Navajo Division of Public Safety and the Navajo Tribe must be held liable for the false arrest and imprisonment of Esther Keeswood, Alien Jim, Douglas Willie, Eva Willie and Andrew Smith.
Use of Excessive Force
The issue of whether the police used reasonable force in effecting the arrest of the plaintiffs is to be decided upon the facts of each arrest and the existing law on arrest without warrant. Our arrest law is constructed in part as follows:
17 Navajo Tribal Code § 904. Arrest.
"No member of the Indian police shall arrest any person for
any offense.. .except when such offenses shall occur in the presence of the arresting officer, or he shall have reasonable evidence that the person arrested has committed an offense, or the officer shall have a warrant..."
Although our law is silent on the issue of force, it is implicit that the amount can be no more than reasonably appears necessary and should not subject the person arrested to unnecessary *374rish of harm./TO
There is undisputed testimony that the named plaintiffs did not resist arrest, but the Court's review of the police video tape showed officers striking arrested persons about the body with batons. Police action of this nature is reprehensible to the principles of good law enforcement and shocking to the conscience of this Court.
Plaintiff Eva Willie testified that she returned to her car when the order to disperse was given and was waiting for others when police officers opened the door and dragged her out. She was then roughly placed in the back o the police panel. This roughness resulted in a very immane bruise on her right leg. Plaintiff Ada Willie testified that she was arrested after she returned to her car. The police opened her car door and pulled her out. She was thrown face down on the ground and handcuffed, her hands behind her, and then rolled on her back. Two officers then lifted her by arm pits and dragged her to the police panel. Esther Willie testified she was standing north of the Council Chambers when she heard the order to disperse given and began walking back to her car with her grandmother whe she was arrested by Officer Joan Russell. She was grabbed by the hair by the arresting officer and her arm was twisted. Plaintiff Marie Smith testified that she saw police throwing Ada Willie to the ground and then saw police chasing her son, Andrew Smith, who threw him to the ground after catching him. She was arrested while protesting the manner in which her son was arrested. ft was determined from the defendant's deposition that Walter Jake arrested Marie Smith. Plain*375tiff Douglas Willie also testified that he was forcefully dragged from his vehicle.
Since none of the named plaintiffs resisted arrest, it stands to reason that any force applied in effecting the arrests should be minimal. This Court cannot find for plaintiff Marie Smith because no evidence of excessive force was established. As to the other plaintiffs not named below, action for excessive force is dismissed. Based upon the facts presented by the testimony and the physical evidence, this Court must rule in plaintiffs' Eva Willie, Douglas Willie, Ada Willie and Esther Keeswood favor. Again, the named defendants in their capacities as Navajo Police Officers acted beyond the scope of their authority and beyond the limit of 7 N.T.C. § 904 by using excessive force where no force was required. The Navajo Division of Public Safety and the Navajo Tribe will therefore be held liable. Such application of undue force results in a deprivation of liberty without due process./11
. Malicious Prosecution
The Navajo Tribe, in establishing the Office of the Prosecutor, has taken from the arresting officers the responsibility of prosecuting the defendants. Therefore, the plaintiffs failed to state a claim against the police officers upon which relief may be granted. The responsibility for the prosecution must lie with the Office of the Prosecutor and not with the individual officers in this cause of action.
*376Defendants1 Counsel, urges this court to rule in favor of defendant Raymond Tso, Chief Prosecutor of the Navajo Nation, for absolute immunity. It is conceded that state prosecutors are clothed with absolute immunity and in some cases even if it is established that a prosecutor knowingly used false evidence to convict a person and that conviction is later reversed and the victims acquitted that prosecutor could not be sued. It is a frightening proposition which defendants counsel urges upon the court and cites Imbler v. Pachtman, 424 U.S. 409, 471 L. Ed2d 138, 96 S. Ct. 984. Additionally, Counsel urges the Court that the public prosecutor's immunity should be at par with judicial immunity. However frightening this proposition may be, the argument is a strong one. But the injury caused by an unconstitutional suppression of exculpatory evidence is substantial and on that basis the prosecutor should not be absolutely immune. This view is consistent with the Court of Appeals ruling in the Dennison v. T. G. & E. case. Based upon the evidence presented, the Court finds that the Prosecutor acted within the scope of his duties no matter how miserably prepared his cases may have been. Additionally, the Navajo Tribe needs a prosecutor absolutely insulated from tne Executive Branch of the government. Only then will we be able to acquire a qualified prosecutor. For the reasons stated above, the cause of malicious prosecution will be dismissed entirely and the Prosecutor is clothed with qualified immunity.
Damages
This Court, in holding the named defendants liable in their *377capacities as Navajo Police Officers for false arrest, false imprisonment and using excessive force in arresting the named plaintiffs, follows the holding in the T. G. & E. case by going beyond the legal fiction and making the real defendant liable for the actions of the named defendants. Therefore, judgment is entered against the named defendants in their capacities as Navajo Police Officers, Navajo Division of Public Safety and the Navajo Tribe for the unlawful arrests and imprisonment as follows: Allen Jim $500; Douglas Willie $500; Eva Willie $1000; Esther Keeswood $1000; Marie Smith $1000; and Andrew Smith $1000. For use of excessive force in arresting the plaintiffs, judgment is entered against the named defendants in their capacities as Navajo Police Officers, Navajo Division of Public Safety and the Navajo Tribe as follows: Douglas Willie $1000; Eva Willie $1000; Ada Willie $1000; and Esther Keeswood $1000; and legal fees in the amount of $835.29. Judgment is also entered against the defendants in their capacities as Navajo Police Officers and the Navajo T ribe for punitive damages resulting from use of excessive force in effecting the arrests of the named plaintiffs as follows: Douglas Willie $1000; Eva Willie $1000; Ada Willie $1000; and Esther Willie $1000. The arrest records of the named plaintiffs are hereby ordered expunged.
It must be remembered that this Court is bound by the legal principles established by our Court of Appeals in Dennison v. Tucson Gas & Electric Co. when it determined during the Kirk era that the Navajo Tribe was the only real defendant when employees of the Tribe act beyond the scope of their duties.
So ordered.
*3781. ~The Judgment, if any shaH be directed and entered against Peter MacDonald, Chairman, and the Navajo Nation~" Dennison, et al. v. T. G. & E. et al. (1974) at 64
2. 1 Modern Constitutional Law at 287
3. Navajo Tribal Council Resolution CF-4-76 at 5, passed and adopted February 17, 1976
4. Lair v. State of Oklahoma, 316 P.2d 225
5. Cf. Sea Isle City v. Vinci, 34 N.J.Super. 273, 112 A.2d 18 (1955); People v. Caswell-Massey Co., 6 N.Y.2d 649, 160 N.E.2d 875 1959; Cleveland v. Baker, 83 Ohio L.Abs. 502, 167 N.E.2d 119 (1960, App.)
6. Dellums, et al. v. Powell, 566 F.2d 167 (1977)
7~ ibid.
8. State v. Lair, 316 P.2d 225 (Okla.); Washington Mobilization Committee v. Cullane, 566 F.2d 107 (1977)
9, Washington Mobilization Committee v. Cullane, 566 F.2d at 120 (16)
10. Law of Torts, Prosser, 4th Edition at 134
11, Everett et al. v. City of Chester, Civ. A. No. 74-9211, U.S. Dist. Ct., E.D. Penn.; Reed v. Philadelphia Housina Authority, 372 F.Supp. 686, 689 | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502798/ | NESWOOD, District Judge
On November 8, 1976, Bertha Davis was hired by the Navajo Tribe as the Clinic Coordinator with the Women Infant Children Program. Mrs. Davis was hired subject to a 90-day probationary period pursuant to Personnel Memorandum Number 1, Section it, Part C of the Personnel Policies and Procedure of the Executive Branch of the Navajo Tribe.
On February 8, 1977, the Plaintiff was notified by a memorandum from Vivian Tsosie, Administrator of the program, that she was terminated pursuant to Section SI, Part C. The memorandum made reference to several problems discussed at a meeting on February 4, 1977, at which it was alleged by Ms. Tsosie that the plaintiff planned to *380resign. Mrs. Davis testified that she had not offered to resign and that the problems outlined in the memorandum of February 8th were never discussed.
On February 14, 1977, the plaintiff received a termination notice stating that she was terminated on February 8, 1977 and stating as cause therefor that she was unable to satisfactorily complete the 90 day probationary period.
Subsequent to her termination, plaintiff instituted this lawsuit against the Navajo Tribe and various officials of the government after her attempts to obtain a grievance hearing were unsuccessful.
This action presents four issues for this Court to decide. They are:
1. Is the Navajo Tribe immune from suit by virtue of the doctrine of sovereign immunity?
2. Was the plaintiff properly dismissed by the Navajo Tribe pursuant to its policy on probation periods?
3. If the action of the Navajo Tribe in terminating the plaintiff was wrongful, did that action subject Mrs. Davis to ridicule and scorn in the Crownpoint community?
4. If the action of the Navajo Tribe in terminating
the plaintiff was wrongful, what damages is Mrs. Davis entitled to?
*381As recently as the case of Santa Clara Pueblo, et al. vs. Martinez, et al., _ U.S. _, 98 S.Ct. 56 L. Ed.2d 106, the United States Supreme Court has held that suits against Indian Tribes can be barred by the doctrine of sovereign immunity.
The Navajo Court of Appeals in Navajo Tribe vs. Holyan, Dennison, et al. vs. Tucson Gas and Electric Company, et al., and Navajo Tribe vs. Orlando Helicopter has upheld the doctrine of sovereign immunity.
This Court is therefore bound to uphold this principle and dismiss the Navajo Tribe as a defendant.
As the Navajo Court of Appeals properly recognized in the Dennison case, the doctrine of sovereign immunity does not bar suits against officials of the government where they are failing to follow the laws set down by the legislative branch.
Therefore, this Court must look to see if the officials named in this suit properly followed the Personnel Policies and Procedures of the Executive Branch.
The termination of Mrs. Davis was not effective until February 8, 1977, which is 92 days after her date of employment. The Personnel Polices state that an employee may be terminated anytime during the probation period, without recourse. A permanent employee is entitled to a grievance hearing. Thus, the question which must be *382answered is whether an employee who has worked for 92 days has become permanent and is entitled to a grievance hearing.
The Personnel Policies and Procedures of the Executive Branch are silent on this point. What is clear is that the probationary period is 90 days and that no employee shall be required to serve more than one probationary period.
This Court believes that an employee authomatically becomes a permanent employee of the Navajo Tribe when he or she is not terminated within the probationary period. Such an employee is entitled to a grievance hearing like any other permanent employee. Therefore, the defendants Dick Neztsosie, Frankie Marianito, and Kim Williams acted improperly in denying Mrs. Davis a grievance hearing. The defendants all acted improperly in terminating the plaintiff as if she were a probationary employee.
In considering the testimony offered by Mrs. Davis in support of her claim that she was subject to scorn and ridicule in the Crownpoint community, this Court concludes that this cause of action must be dismissed. The plaintiff has failed to establish by her testimony that she had established any reputation in Crownpoint. In fact, the plaintiff only resided in Crownpoint for two weeks.
The plaintiff's testimony also failed to establish that she suffered any adverse response to employment applications, in Crownpoint or elsewhere, as a result of her termination.
*383The fina! issue before this Court is what amount of damages the plaintiff is entitled to. Because the plaintiff was entitled to a grievance hearing, this Court is compelled to order one. It is possible that the Grievance Committee will act to repair any damages caused to Mrs. Davis, if any. If the Grievance Committee fails to resolve this matter satisfactorily, this Court will then consider further the issue of damages.
However, because of the failure of the defendants to follow proper procedures in terminating the plaintiff and because of the failure of some of the defendants to allow a grievance hearing, Mrs. Davis has had the expense of obtaining legal counsel. Therefore, the defendants are ordered to pay legal fees and expenses in the amount of $750 to the plaintiff. If further action is required by this Court, the cost of that action will be considered separately.
The orders of this Court are as follows:
1. Frankie Marianito, Kim Williams and Dick Neztsosie are ORDERED to afford the plaintiff a grievance hearing within ten days. A decision of the Grievance Committee shall be forwarded to this Court within ten days of that hearing. This Court retains jurisdiction over this matter. If the decision of the Grievance Committee is not satisfactory to the plaintiff, she may file notice with this Court within ten days of the Grievance Committee's action. Such notice shall summarize the plaintiff's complaint with the Grievance Committee action. This Court will then decide the matter *384based on the testimony already given.
2. Plaintiff's Third Cause of Action is DISMISSED.
3. Plaintiff's Second Cause of Action is DISMISSED.
4. The Navajo Tribe is DISMISSED as a defendant.
5. Defendants are ordered to pay to the plaintiff legal expenses and costs in the amount of $750 within thirty days.
SO ORDERED. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502799/ | JOHN, Acting Chief Justice:
I.
On January 18, 1977, Chief Justice Virgil L. Kirk, Sr., agreed to employ the Plaintiff in the capacity of Judicial Branch Fiscal Officer, effective January 24, 1977. By memorandum, the Chief Justice requested that the Defendant Frankie Marianito process all the necessary papers. The appropriate personnel action form was prepared by the Judicial Branch and signed by the Chief Justice and it bore the notation "90 Days Probationary Period" in the remarks section.
On April 12, 1977, the Defendant Frankie Marianito wrote *386the Chief Justice that the Plaintiff's employment would be terminated on April 22, 1977, because she was hired temporarily. His letter referred to a memorandum from Thomas H. Brose, Director of the Divison of Equal Employment Opportunity, to Mari an ¡to stating that the Plaintiff's employment was temporary, that Indian preference would have to be observed and that the nepotism provisions of the Executive Branch's personnel policies were being violated by Mrs. Gudac's employment at the Judicial Branch.
Apparently, Brose based his opinion that the Plaintiff's employment was temporary on a personnel action form which stated that to be the case. However, the form Brose saw did not bear the signature of the Chief Justice as did the form originally submitted by him. Therefore, this form, with its changed notation, must have been substituted by someone outside of the Judicial Branch at some time subsequent to the plaintiff's employment.
On April 13, 1977, Chief Justice Kirk wrote Marianito that the Plaintiff's employment was not temporary and that the personnel policies of the Executive Branch did not apply to the Judicial Branch. Therefore, he stated, Mrs. Gudac was not to be terminated by any action of the Personnel Office.
When it appeared that the Defendants would proceed to terminate the Plaintiff without the consent of the Judicial Branch, Mrs. Gudac, on April 15, 1977, filed an Application for a Temporary Restraining Order and Permanent Injunction to prevent her termination *387by Executive Branch officers.
On that same day, the Window Rock District Court issued the requested order, preventing the Plaintiff's termination. On April 21, 1977, after a full hearing, the Window Rock District Court issued a Permanent Injunction preventing any and all of the Defendants from acting individually or in concert to terminate the Plaintiff. The Court found that the Plaintiff would suffer irreparable harm if the injunction were not issued. The Court further found that the personnel policies and procedures of the Executive Branch did not apply to the Judicial Branch and the Court enjoined the Defendants and their successors from ever applying them to Judicial Branch personnel.
On May 20, 1977, the Defendants filed a Motion to Correct Error and to Dissolve the Injunction. This motion was denied on June 8, 1977.
On May 23, 1977, the Defendants filed this appeal and oral argument was heard on November 14, 1977.
II.
The issues f re.se ted by this appeal can be summarized as follows:
1. Do the personnel policies and procedures which Mr. Mar ¡an ¡to sought to enforce as to Mrs. Gudac apply to the Navajo Judiciary?
2. Was injunctive relief appropriate and was the scope of the injunction proper?
*3883. Were Rules 6 and 7 of the rules of Court properly interpreted by the District Court?
4. Who does have the authority to control personnel matters of the Judicial Branch of the Navajo tribal government?
III.
The District Court was absolutely correct in ruling that the personnel policies and procedures of the Executive Branch do not apply to the Judiciary. These policies are often referred to as "tribal" policies. They are not.
Resolution CAU-50-59, passed August 6, 1959, delegated to the Advisory Committee of the Navajo Tribal Council the authority to approve personnel policies for the Executive Branch of the Navajo tribal government. The legislative history behind this act and terms of the act itself make it perfectly clear that this authority was intended to extend only to the Executive Branch, headed by the Chairman of the Council, and that the phrase "Executive Branch" was purposefully used to distinguish it from the Judicial Branch, which was then in existence and was then specifically referred to by the Council and the Code it had recently enacted in those terms: Judicial Branch.
On December 18, 1959, the Advisory Committee adopted a resolution, ACD-173-59, approving personnel policies for the Executive Branch. ACD-173-59 made clear and specific reference to the authority delegated to the Committee by CAU-50-59.
At no time did any Council or Committee member suggest *389that the policies then being adopted (which are substantially the same ones defendants attempted to enforce as to the Judiciary) would ever apply to the Judicial Branch of the Navajo Nation.
The fact is that no one in the Executive Branch attempted to apply these policies to the Judiciary until 1974, when Mr. Marianito's predecessor attempted to bring the Judges of the Courts of the Navajo Nation within a new administrative ruling concerning carry-over of leave. At this time, the Chief Justice and the General Counsel to the Judicial Branch informed the Executive Branch and its Legal Department that such efforts were in violation of the law. At first, the Legal Department agreed and issued an advisory opinion, dated May 8, 1974, to this effect. As a result of political pressure from within the Executive Branch, this opinion was subsequently withdrawn in September of that same year. The second opinion erroneously interpreted both CAU-50-59 and ACD-173-59 and was apparently based on a misquote of ACD-173-59 as well as a deliberate misrepresentation of CAU-50-59.
This dispute did not end but in fact found expression in letters sent by Mr. Marianito to certain judges in November of 1976. The termination of Mrs. Gudac was but a continuation of a long-standing argument between the Judiciary and the Executive Branch of the Navajo government.
We note with interest that the policies of the Executive Branch do not actually give the Director of Personnel the right to *390terminate Executive Branch personnel, let alone Judicial personnel. In addition, these policies define “nepotism", which was one of the bases of the illegal firing, only in terms of employment within the same office or division. Numerous Executive Branch personnel married to each other work within the same office and division, not to mention the fact that many more couples work in different offices and divisions of that branch.
Apparently, the Executive Branch refuses to recognize the fact that the Judicial Branch of the Navajo Nation is itself composed of various offices and districts. Given this fact, the plaintiff's employment would not have been in violation of these policies even if they had applied. We realize that counsel for Appellants has placed heavy reliance on the manner in which the Fiscal Year 1977 budget described the organization of the Judiciary, but this is a matter over which the Judiciary seems to have no control since one of the defendants is the person who sees to the printing of the budget. We are well aware that no matter what the Judiciary submits to the Budget and Finance Committee and the Council in terms of budget justification of its organizational structure, the Controller will restructure the budget format to suit his perception of the Judiciary. This budget format therefore cannot be controlling of the organizational structure of the Navajo Judiciary.
In any case, it does not matter, because we hereby affirm the District Court's ruling as to the applicability of the Executive Branch's personnel policies to the Judicial Branch. :
*391We further rule that the Indian Civil Rights Act of 1968 precludes the application of any personnel policies administered by the Executive Branch to the Judiciary because such a system would make it impossible to guarantee the independence of the Judiciary and therefore impossible to guarantee the rights secured by the Indian Civil Rights Act itself, except by litigation in federal court. We cannot accept the notion that this Tribe would ever concede that such a situation should come about. Tribal sovereignty would have no meaning were this Court to analyze the situation any other way.
IV.
Injunctive relief was appropriate in this case and the scope of the relief granted was proper. Counsel for Appellants agreed in oral argument that no standards exist by which Appellee's damages could have been measured. Indeed, the situation was most peculiar and difficult to analyze in terms of damages because plaintiff had assumed the position of Fiscal Officer for the Judicial Branch knowing that the pay was inferior to her normal standards. Any damages would have been nearly impossible to assess. Determining the extent of the injury would have been further complicated by the fact that it was not plaintiff's employer who terminated her but someone outside the Branch.
We will not lecture counsel for Appellants on the law. We refer him to the cases on the appropriateness of injunctive relief. See, Luckenbach S. S. Co. v. Norton, 21 F.Supp. 707 (D.C., Pa.); General Electric Co. v. Local 997 United Auto Workers of America, *3928 Ill.App.2d 154, 130 N,E.2d 758; Winslow v. Fleischner, 110 Or. 554, 223 P. 922; W. L. Matthews v. 3. F. Rodgers, 284 U.S. 521, 52 S.Ct. 217, 76 L. Ed. 447; Eastwood v. Eastwood, 167 Kan. 471, 207 P.2d 393; Wyman v. Jones, 123 Colo. 234, 288 P.2d 159; Koussevitzky v. Allen, Towne & Heath, 27 App.Div. 759, 69 N.Y.S. 2d 432; Monson v. Tussauds, Ltd., 1 QB 671 (1894).
The scope of the relief was proper given the obstinate nature of certain Executive Branch personnel and the fact that this dispute had actually been going on for some years. Had the injunction not included successors, the Chief Executive Officer could merely have switched personnel and thereby brought everyone out from under the order. Since the District Court had determined that there was (and can be) no authority for the actions taken by Executive Branch personnel against the Judiciary, no rights of the Appellants or their successors are abridged by the scope of the ruling. In any case, these Appellants have no standing whatever to raise the issue as to their successors. See, Crystal Pier Amusement Co. v. Cannan, 219 Cal. 184, 25 P.2d 839, 91 ALR 1347.
V.
Counsel for Appellants has raised the claim that representation of the Plaintiff-Appellee by Mr. Stephen M. Gudac and Mr. Marc S. Gladner represents a violation of Rules 6 and 7 of the Navajo Rules of Court.
*393Rule 6 requires persons practicing before our courts to have passed the Navajo Bar examination. Mr. Gudac and Mr. Gladner, respectively as General Counsel and law clerk to the Judicial Branch, have prepared and administered all of the bar examinations thus far given. They have done so at the express command of the Judges of the Navajo Nation because no other avenue of implementation of the recently adopted Rule 6 was available, the Bar Association being completely unorganized. Indeed, since the first Navajo bar examination ever given was conducted in December of 1976, there really was no one else available to draft and administer it. It should be obvious to any sensible person that Rule 6 was never meant to apply to these two attorneys. In addition, our General Counsel's contract requires him to defend the interests of the Navajo Judiciary and that is sufficient basis for us for admitting him to practice in our courts when he is defending the interests of the Judiciary.
We fail to understand why this question was ever raised except in the hopes that plaintiff could not otherwise afford competent counsel or in the expectation that no one else could competently litigate this case. Usually, attorneys do not concern themselves with whether opposing counsel is a member of the bar; indeed, if they are not, counsel admitted to a particular bar generally motions in opposing counsel. The pettiness of the argument seems to be a matter of "clutching at straws" in a hopeless case.
The argument raised by Mr. Chapela as to Rule 7 is similarly weak. Rule 7 prohibits Judicial employees from representing *394private parties in suits before the Navajo courts. It is absolutely foolish to claim that this rule is applicabe to a suit brought by a Judicial employee in her official capacity and raising issues of substantial interest to the Judiciary. The intent of this rule is clear and nothing more need be said about it. We do note that Mr. Chapela sought to raise this issue on appeal when he had not raised it at the trial below. Perhaps counsel should himself re-learn the Rules of Appellate Procedure, as they are universally written. Issues not raised at the trial below are not "appealable".
VI.
The last questions we must examine is that of who does control the personnel policies of the Judicial Branch of the Navajo Nation. The answer is that the judges do, and only the judges.
Except for Title 7, Section 254 of the Navajo Tribal Code, which grants the judges collectively the authority to create new positions, the Code is silent as to this matter, And for good reason it is silent. When the Judicial Code was being drafted, it was understood by everyone that the Judiciary would have to be free to set its own personnel policies. This is why 7 N.T.C. 254 was included. This section provided for the growth in staffing of the courts and left such policy decisions to the judges collectively. All other personnel matters were left to the decision of the judges individually or collectively, depending on the nature of the policy considerations.
*395That this was the intent of the Council is clear from the omission of the Judiciary in Council Resolution CAU-50-59. The Navajo Tribal Council sitting at that time was receiving sound legal advice and was making decisions ahead of the trend of the law.
Subsequently, in 1968, the Indian Civil Rights Act, 25 U.S.C. 1302, was passed by the United States Congress. In our opinion, this law precludes any other system except what we here have described. The Judiciary must be free to control its own personnel and personnel policies if the courts are to remain free from political pressure. Indeed, such problems, as the legislative record surrounding the passage of this acts shows, were a major element in causing the passage of that act. We must rule that the Indian Civil Rights Act requires that Indian courts exercise independent control over their personnel. No other analysis is possible if any effect is to be given to the spirit of this law.
The notion of collectivity is one which arises because of the nature of our judicial system. We expect uniformity in personnel policies and procedures as a matter of good judicial administration, equity and common sense. The creation of new positions is certainly something which requires a concensus among the judges. The position of Fiscal Officer (and, for that matter, of General Counsel) is one not mentioned in the Code.
it was not anticipated in 1959 that the Judicial Branch would be colleting almost $600,000 in fines and fees, contracting with *396various state and federal agencies for amounts approaching a total of $400,000 and operating on a budget of nearly $900,000.
Court finances have gotten complicated, yet the responsibility for these funds still lies primarily with each District Judge and his Chief Clerk. This position of Fiscal Officer is one that can only be created to serve and assist the judges and their staffs in carrying out their duties.
This becomes obvious when the caseload is analyzed: the district courts handle about 34,000 cases a year, the Court of Appeals about 30. Certainly then, no one could argue that the Fiscal Officer is hired primarily for any purpose other than to provide technical assistance and support services for the district courts. The other functions of the Officer of Fiscal Affairs are incidental.
The fact that the judges collectively do have the right to control personnel policies, to create new positions and to develop the budget each year was made clear by the Budget and Finance Committee of the Navajo Tribal Council when the Fiscal Year 1978 budget was being submitted to them for approval. They refused to make the changes in staffing and funding requested by the Chief Justice unless such changes were first approved by a vote of all the judges.
We therefore now rule that the ultimate authority over all Judicial Branch personnel matters rests with the Chief Justice and District Judges collectively and that no system which may purport to place *397such matters under the control of any outside agency or in any one person's hands is legal under tribal fw and 25 U.S.C. 1302,
For all of the reasons set forth above, we hereby AFFIRM the decision of the Window Rock District Court.
BLUEHOUSE, Associate Justice and WALTERS, Associate Justice, concur. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502801/ | OPINION
Justice Tom Tso
delivered the Opinion of the Court.
The above-entitled matter comes before the Court of Appeals of the Navajo Nation on the Navajo Housing Authority’s petition for a declaratory judgment to determine rights under Mutual Help and Occupancy Agreement and certification of questions from the Honorable Homer Bluehouse and the Honorable Marie F. Neswood, District Judges for Chinle and Crownpoint Districts, respectively. The two judges have requested the Court of Appeals to review the certification of questions on the validity of applying 16 N.T.C., Sec. 1801 through 1810 in causes of action against citizens residing in the Navajo Housing Authority’s Mutual Help Housing Program.
The two judges requested the certification of questions because of the multiplicity of similar actions in the two courts and on further information these types of cases are presently pending in the rest of the Navajo courts. The only issues this court will deal with at this time and by this opinion is whether the trial court should certify questions to the Court of Appeals and whether the certification of questions instantly before us is proper and permitted by the Rules of the Appellate Procedure.
*6The Navajo Rules of Appellate Procedures at Rule 16, Mandamus and Other Special Proceedings, states, “the Court of Appeals will take original jurisdiction in proceedings for a writ of mandamus or a writ of prohibition or in any other special proceedings only when it appears that no remedy is available from a district court” (emphasis added).
If a certification of question is a “special proceedings” pursuant to Rule 16, then the Navajo Court of Appeals will have original jurisdiction.
The term certification of a question is one of no fixed content. Such term is used to describe a practice based on the procedure developed in the federal courts, under which an entire case or more generally a specific question of law involved in the case may be sent from a lower to a higher court for decision.
Certification is provided for in some jurisdictions where the intermediate appellate court is of the opinion that a question of law is involved which is of such importance that the higher court ought to review the entire case. 5 Am. Jur. 2d, US. Appeals and Error, Sec. 1025.
It appears a certification of questions is part of the built-in remedies available from a trial judge when there is narrow and definite question(s) of law or statute(s) before him wherein she / he certifies to the appellate court for review and determination which is then returned to the trial court for the proper disposition.
From the discussion above it appears that a certification of questions from a lower court to a higher court is a special proceeding in the Navajo Nation Courts, therefore in the instant case the Navajo Court of Appeals has jurisdiction to review the questions certified to them by the Chinle and the Crownpoint District Courts.
Where the jurisdiction on appeal of the highest court is based on certified questions it is usually restricted to review of single or particular questions which present distinct questions or propositions of law usually arising in the case, and which are material, and will aid the lower court in determining the case before it. Different questions from those certified by the Court below cannot be substituted by the parties.
Certification by the trial court may be limited to particular types of questions which are important and doubtful. 5 Am. Jur. 2d, Appeals and Error, Sec. 1026.
The following elements must occur before a question can be certified from a lower court to a higher court, i.e.,
(a) the question must be one of legal doubt requiring a final determination of law;
(b) it must be a question of material importance or an issue of substantial public interest;
(c) it may so affect the merits of the controversy that it ought to be deter*7mined by the reviewing court before further proceedings in the trial court;
(d) all those elements must be so determined to exist by the court before which the cause is pending prior to the question(s) being certified for review. State v. Karagavoorian, 32 RI 477.
On certification of question as to the constitutionality of a statute, the duty of the appellate court is to test the constitutionality only in-so-far as the question relates to the disposition of the actual case presently before the court. Agootian v. Providence Redevelopment Agency, 80 RI 72, 91 A2d 21.
Certified questions should 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. 5 Am. Jur. 2d, Appeals and Error, Sec. 1028. Generally, the appellate court will consider only the question or questions certified, without regard to the record, although in some jurisdictions the appellate court instead of answering the questions certified may be authorized on its own motion to order up the entire record as though it had been brought up on appeal.
The opinion of the higher court on the question certified becomes the decision of the lower court on the question(s), but the opinion rendered by the intermediate appellate court remains undisturbed during the pendency of the case in the higher court on a certified question.
The matter at bar is a question of law regarding the legality of 16 N.T.C., et. seq. when utilized by the Navajo Housing Authority as to participants residing in the Mutual Help Housing throughout the Navajo Nation. The questions certified to this court appears that it would create potential conflicts when the lower trial judges are hearing essentially the same cases which could and will result in contrary findings.
On the questions certified in this matter it appears that the legality of the forcible entry and detainer law as found within 16 N.T.C. is being challenged which is basically a constitutional challenge to the procedure under Navajo law.
In considering the certification of questions before this court from the lower court, and upon examination of the certificate, it appears from the Chinle and Crownpoint District Court that each of the elements necessary for certifications are being essentially met.
Upon review of the instant facts, there are pending actions which involve an interpretation of tribal law and the request is a narrow ruling on the legality of such statute in light of events surrounding the eviction of mutual help participants. On such reading therefore, it appears that the case at bar is being conducted in accordance with the general trend of certification of questions. The question of jurisdiction of the Court of Appeals to hear such mat*8ters as the certification of questions can be framed as involving substantial issues of public interest which will affect the total outcome of both HUD Housing on the reservation as well as the several causes of action that are now before the courts. Thus, there are several policy decisions that are to be considered as part of this question. Although not the ultimate reason for such consideration, nevertheless, this case requires serious consideration by the Court of Appeals for the future housing growth within the Navajo Nation.
THEREFORE, the certification of questions from the Crownpoint and Chinle Courts are proper and this Court should consider the questions.
THEREFORE IT IS HEREBY ORDERED that the Navajo Nation Court of Appeals will accept the certificate of questions from the Chinle and Crownpoint District Courts and will consider the questions.
IT IS FURTHER ORDERED that the stay of proceedings in this matter will continue and any further proceedings within the lower court are stayed until the further outcome of this matter.
IT IS FURTHER ORDERED that the participants are directed to continue paying their agreed monthly payments to the Navajo Housing Authority. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502802/ | OPINION
Acting Chief Justice Tso
delivered the Opinion of the Court.
REVERSED AND REMANDED
This is a child custody case in which the mother and the father are. striving for the custody of their children.
A decree of divorce was entered in the above-captioned matter on June 25, 1980, wherein custody of the parties’ minor children was granted to the Appellant. Since then Appellant had custody of the three minor children. On August 23,1982, Appellee filed in the Shiprock District Court a motion for a change of custody. Subsequently, a hearing was set to hear the motion two times and the matter was continued both times. On October 28, 1982, Appellant submitted a response to the motion for a change of custody and argued that Appellee’s motion was submitted contrary to Rules on Pleadings, Forms and Motion, specifically Rule 4 and the Court should summarily dismiss the motion without a hearing pursuant to the Rule. The Court rendered no decision on the Appellant’s response to the motion for a change of custody.
A second motion, a Motion for a Home Study, was also submitted by *10Appellee, to which Appellant submitted a Motion in Opposition again arguing the motion is not in compliance with Rule 4, et. seq., Rules, on Pleadings, Forms and Motions, specifically arguing no brief was submitted with the motion. Subsequently, there was another continuance on the Appellee’s motion.
On May 4, 1983, the matter came before the court for a hearing at which time only Appellee appeared with his attorney. Appellant and / or her attorney failed to appear. The Appellee, his attorney and their witnesses, met with the judge in chambers and it appears there were some informal discussions resulting in an order being issued accordingly on June 8,1983.
I.
The issues before the Court are as follows:
1. Whether the District Court erred in granting a default judgment;
2. Whether the District Court’s Order for change of custody is supported by evidence;
3. Whether the District Court failed to act as a parens patriae for the minor children;
4. Whether Appellant was denied her right to due process guaranteed by the 1968 Indian Civil Rights Act codified at 25 USC Sec. 1302(8);
5. Whether the Appeal was timely perfected.
II.
The Court of Appeals will first address the issue of whether the case before the court was timely appealed.
Rule 2(c), Filing of Appeals, Rules of Appellate Procedure, states “. . . the Notice of Appeal, briefs, the fee and the copy of the final judgment shall be filed with the Clerk within thirty (30) calendar days of the date the final judgment or order being appealed was entered in the record by the District Court. No extension of time within which to file the appeal shall be granted, and no appeal filed after the expiration of the thirty (30) days period shall be allowed.”
According to the record on appeal, Appellant perfected her appeal on July 8,1983, and it was entered into the record of the Court below on May 12, 1983, as evidenced by the stamp of the Court and also the affidavit of the court clerk. Appellee further argues that the order was “rendered,” by whatever definition it is used, certainly no later than May 12,1983.
*11The affidavit of Mildred Mitchell, Chief Clerk of the Shiprock District Court, states she received the order in the mail on May 12,1983, bearing the signature of Judge Whitehair whereupon she stamped the order “May 12, 1983” indicating the date when the order was received.
The records from the court below, specifically the file docket sheet, indicates the Honorable Judge Whitehair signed the order on June 8,1983. As the Navajo Tribal Courts are courts of record, the record of the court as reflected in the docket sheet will be deemed conclusive. The order was signed and entered on June 8,1983. Under the provisions of Rule II of the Rules of Civil. Procedure, the appeal time began to run from that date. Hence, the appeal was timely filed.
III.
Appellent contended that the Court erroneously rendered a default judgment when in fact she responded to the appellee’s motion and the matter was put at issue. The issue is whether a party is entitled to a default judgment when the adverse party had responded to a motion but failed to appear for trial.
It has been declared that once an answer on the merits is filed and the case is at issue, a default judgment may not be rendered against the defendant for failure to appear at the trial. It is reasoned in support of this rule that since the burden of proof is upon the plaintiff he must prove his case not withstanding the failure of the defendant or his counsel to appear at the trial. Yazzie v. Yazzie, TC-CV-205-82, (decided October 27, 1983).
In the instant case, appellee was not entitled to a default judgment since appellant responded to the motion and the matter was put at issue. The burden of proof was upon appellee to prove a change of custody is necessary and in the best interest of the children.
The District Court’s Order of May 4,1983, implying a default judgment is proper due to the appellant’s failure to appear, is a reversible error.
IV.
The Court will now address the issue of whether the District Court’s order for change of custody is supported by evidence. From previous findings the matter was set for a hearing on May 4,1983. When the Appellant and her counsel failed to appear, Appellee, his attorneys and witnesses met with the judge in his chambers where certain informal discussion transpired and an order was entered accordingly.
The Order of the District Court dated May 4,1983, states in relevant part *12. . due to a material change in circumstances since the entry of the final decree herein, the best interest of the children of the parties would be served by plaintiff having full care and custody of such minor parties subject to reasonable visitation rights of the defendant.”
The Court of Appeals has dealt with an issue of this nature in the decision of Lente v. Notah, 3 Nav. R. 72 (1982). A substantial change of circumstances must be alleged and the pleadings should show why a change of custody is better for a child as well as facts demonstrating a substantial change of circumstances. Id. at 75.
The dominant principle is always the best interest of the child. Id. at 72, 76. The best interest test is based on facts and scientific findings. Id. at 72, 76.
There are no fixed standards as to what constitutes a substantial change of circumstances or what is in the “best interest of the child’s” test. Only a complete review of the circumstances surrounding a child will give the Court guidance on how to rule. Id. at 72, 79.
There is obviously no evidence whatsoever to support the Distria Court’s Order for a change of custody and the same must be reversed.
V.
The next issue is whether the trial court failed to act as parens patriae for the minor children.
The general rule is that the court must always act as the parent of the child and must act in the best interest of the children especially in cases where a change order of custody is requested.
The District Court failed to make findings of facts as to whether a change of custody is in the best interest of the children which is clearly a failure to act as a parent in the place of the parents for the minor children. Such failure to act is a reversible error and must be remanded for a proper disposition.
VI.
The last issue is whether plaintiff-appellant was denied her rights to due process as guaranteed by the 1968 Indian Civil Rights Act. The relevant part of the 1968 Indian Civil Rights Act states that “. . . no Indian tribe in exercising powers of self government shall deny to any person within its jurisdiction the equal protection of its law or deprive any person of liberty or property without process of law.”
The Appellant is arguing that the order of the District Court entered June 8,1983, ordered the Navajo Tribal Police Department to pick up her children *13within five days. Such order was carried out by the Navajo Police Department. However, the children have subsequently been returned to the Appellant and therefore that issue is moot and the court will not address itself to that matter.
It is therefore ORDERED that the District Court’s Order entered June 8, 1983, be and is hereby reversed.
It is further ORDERED that the above-entitled matter be and is hereby remanded to the Shiprock District Court for further disposition in accordance with the Court’s opinion. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502804/ | OPINION
Appellant and appellee were divorced on December 7,1981. The issue of custody of the five minor children of the marriage was reserved. Appellant had been given temporary custody of the children on November 23,1981, and custody was continued with her pending a permanent order. On February 8,1982, the trial court amended its custody order to give joint temporary custody to both parties with primary custody in the mother. On April 21,1982, the trial court awarded the parties permanent joint custody of the minor children and directed the parties to prepare a joint custody plan. The parties were unable to agree upon a plan for implementation of joint custody and each party submitted a separate proposal to the trial court. By order dated September 16,1983, the trial court without further proceedings or hearings on the matter, made a split custody award of the minor children. Appellant was given custody of LaVerne and Lynette and appellee was given custody of Loretta, Loren and Lorayne. Neither party was ordered to pay child support but the appellee was ordered to provide medical and dental coverage for the children and to pay one-half the extraordinary expenses of LaVerne and Lynette.
The oldest child of the parties was born October 29, 1973, and the youngest was born October 11,1980. The father is Navajo and the mother is Hopi. All the children are enrolled or are eligible to be enrolled in the Navajo Tribe. The father resides in Phoenix but maintains close family ties with his relatives in Tuba City. The mother resides in Moencopi, Arizona.
*18Throughout the custody proceedings the trial court made extensive efforts to inform itself by way of social service investigations, financial statements and medical reports. The trial court found that both parents were fit and proper persons to have custody and that both parents maintained good relationships with the children.
This case came before the Court of Appeals on the question of whether the trial court abused its discretion in the award of split custody and whether there was an abuse of discretion on the award of child support.
Child Custody
The Court finds that the joint custody award by Order dated April 21, 1982, was a permanent and not a temporary order.
Although the joint custody order of April 21,1982, left open for future determination by the parties particulars as to the implementation of the joint custody and although the trial court specifically reserved the right to approve or disapprove the parties’ plan of implementation, there is no indication that the issue of the type of custody was open for further debate. The Order read in its entirety is quite clear that the parties were awarded joint custody and that the manner in which physical custody would be determined was the only issue reserved for future consideration. This is much the same situation as granting the divorce but reserving certain issues such as custody and child support.
The Court further finds that the subsequent order of September 16,1983, providing for split custody was improper. The split custody award was in effect a modification of the prior joint custody award. This court has previously set forth the procedure which must be followed when a modification of a custody order is sought. This procedure requires that a motion for a modification be filed with proper service upon the opposing party; that the motion set forth facts showing a change of circumstances and state reasons why a modification of custody is in the best interests of the child; that a hearing be had; that the moving party show a substantial change in circumstances since the last custody order; and that the court find that the change in custody is in the best interests of the child. Lente v. Notah, 3 Nav. R. 72 (1982).
The trial court was apparently of the opinion that joint custody could only be ordered in those situations where the parties can reach agreement on the details of a shared custody arrangement. Parental assistance and cooperation in the implementation of joint custody is certainly the preferred atmosphere but we cannot hold that the courts are always precluded from making a joint custody order in the absence of complete parental cooperation. In this particular case the trial court had extensive contact with and information about the parties and in its discretion determined that the situation was conducive *19to joint custody. It would have been proper for the trial court to have proceeded to make an order establishing the details of such custody arrangements. Joint or shared custody is a relatively new legal concept not only in the Navajo Courts but in the country as a whole. Until such time as divorcing parents become aware of the flexibility of such concept and of how they can participate in determining vital issues concerning their children, the courts may have to provide a great amount of guidance. Such guidance is not contrary to the principles of joint custody:
Much of the research described and summarized in this book supports the conclusion that the best interest of the child is served by the continued involvement of both parents in the post-divorce life of the child. Put another way, it appears that divorces having the least detrimental effect on the normal development of children are those in which the parents are able to cooperate in their continuing parental roles. Parental cooperation cannot be easily ordered or legislated, but it can be professionally, judicially, and statutorily encouraged and enclosed. “Winner take all” sole custody resolutions tend to exacerbate parental differences and cause predictable post-divorce disputes as parents try to strike back and get the last word. Joint or shared parenting following divorce is an appealing alternative. Jay Folberg, Joint Custody and Shared Parenting 9 (1984).
Although the propriety of joint or shared custody per se is not at issue before this Court, the Court has read and been informed by the Opinion and Order of the trial court of April 21,1982, wherein Judge Tso, the trial court judge, has presented a brilliant analysis of the relationship between the principles of joint custody and traditional Indian family modes. In that opinion, which is reported at 3 Nav. R. 223, 226 (1982), Judge Tso states:
. . .you cannot separate native peoples from their culture and tradition. This court takes judicial notice of the fact that in Navajo culture and tradition children are not just the children of the parents but they are children of the clan. In particular children are considered members of the mother’s clan. While that fact could be used as an element of preference in a child custody case, the court wants to point out that the primary consideration is the child’s strong relationship to members of an extended family. Because of those strong ties, children frequently live with various members of the family without injury. This is the condition throughout Indian Country (as Indian reservations as a whole are called). Therefore the court looks to that tradition and holds that it must consider the entire extended family in order to make a judgment based upon Navajo traditional law.
This approach is in harmony with modern trends in child psychology as well. It is interesting to note that the Anglo-European society is increasingly discovering ways which we have known for centuries.
Having found that the order of April 21,1982, was a permanent order and that the proper procedures for modifying that order were not followed, the *20Court is now in the position of the trial court on April 21,1982; that is, there is a joint custody award with no guidelines to the parties as to how the joint custody is to be implemented.
The Court may either remand the issue for further proceedings or may in the interests of justice and disposing of the matter, modify the order so as to do justice to the parties. Considering the length of time the matter has been pending, the Court finds that it is in the best interests of the parties and the minor children that litigation in this matter come to an end.
The Court therefore makes the following orders regarding custody of the minor children of the parties:
1. Appellant and appellee are awarded joint custody.
2. The minor children shall reside with appellant during the school year.
3. The minor children shall reside with appellee during the summer vacation from school.
4. Each parent shall have liberal access to and visitation with the children during the periods of time the children are not residing with that parent. All visitation is to be by prior arrangement between the parties.
5. The parent with whom the children are residing or currently with shall be responsible for daily care and shall make necessary decisions regarding emergency medical or dental care.
6. All major decisions regarding the children’s education, religious training, cultural and artistic training, non-emergency health treatment, and general welfare shall be made by both parents together.
7. Each parent shall encourage the minor children to love and respect the other parent and shall encourage close ties with both maternal and paternal relatives.
8. Neither parent shall change the Arizona residence of the minor children without notification to the other parent.
9. Neither parent shall change the residence of the minor children to a location outside the state of Arizona without prior written consent of the other parent.
Child Support
Under the split custody decision of the trial court, there was no abuse of discretion in the failure to award child support to either party. Under the provisions of joint custody as set forth above, however, the Court finds that some provision should be made to help defray the costs to appellant of having the children residing with her the greater portion of the year and of providing for the children during the winter months when heavier clothing is needed. The Court makes the following orders regarding child support:
*211. Appellee shall pay to the appellant as and for child support the sum of $100.00 per month per child for the nine months of September through May.
2. Appellant shall provide medical and dental coverage for the minor children.
3. The parties shall bear equally the costs of any medical or dental bills for the minor children not covered by insurance.
4. So long as the parties comply with this order, the appellant shall claim two children as dependents for Federal Income Tax purposes and the appellee shall claim three children as dependents.
It is further ORDERED that the above custody and support provisions shall become effective immediately. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502805/ | OPINION
This matter came before the Court for hearing on October 17,1984, on the issue of whether the Appellant’s statement of election contest as contained in her original Statement of Grievance and the amended Statement of Grievance was sufficient on its face so as to require a hearing.
On November 2,1982, an election was had in Fort Defiance for the purpose of electing two Navajo Tribal Council delegates. The two positions subsequently became vacant and two special elections were held on February 14,1984, and April 17,1984.
On the day of the April 17,1984, election the Navajo Times contacted the chapter house regarding the time for the polls to be open. The paper was told that the polls closed at 5:00 p.m. rather than 7:00 p.m. as mandated by 11 N.T.C.J19.
Appellant Rena Willliams was a candidate in the April 17, 1984, election. She lost to the only other candidate, Jimmie Bitsuie, by 15 votes.
On April 26, 1984, appellant filed a Statement of Grievance with the Navajo Board of Election Commission (hereinafter referred to as Commission). The Statement of Grievance contained the following allegations:
*261. A professional and impartial attitude was not demonstrated by the election representative as required by 11 N.T.C. Chapter 13 §245.
2. The election representative’s failure to insure that the proper time for the polls to close was released to the Navajo Times was a violation of 11 N.T.C. Chapter 13; and
3. An unspecified percentage of the registered voters did not vote and this failure to vote was a direct result of the publication of the wrong time for the polls to close.
On May 10,1984, appellant submitted an amended Statement of Grievance. The amended Statement of Grievance contained what were labeled as “First Cause of Action” and “Second Cause of Action”. The “First Cause of Action” sets forth the publication of wrongful conduct of the election representative. The “Second Cause of Action” states that Jimmie Bitsuie and other unnamed persons slandered appellant prior to the election. The amended Statement of Grievance was accompanied by certain documents including an affidavit from a chapter employee that she had been acting as receptionist on April 17, 1984, and that she had released the wrong time for the polls to the Navajo Times. There was also a Petition signed by twenty-one registered voters of the Fort Defiance Community stating that they felt the publication of the wrong time caused some voters not to vote and caused appellant to lose the election.
On May 10, 1984, the Commission reviewed the original Statement of Grievance. It is not clear to the Court whether the amended Statement of Grievance was reviewed. The Court is of the opinion, however, that the First Cause of Action of the amended Statement of Grievance did not enlarge upon the allegations of the original Statement of Grievance and that the allegations of the Second Cause of Action were outside the scope of the authority and review of the Navajo Board of Election.
On May 21,1984, appellant filed a Notice of Appeal. On June 29,1984, the Court of Appeals entered an Order allowing an appeal on the issue of whether the statement of election contest as contained in the Statement of Grievance and the amended Statement of Grievance was sufficient on its face so as to require a hearing.
The Navajo election laws for electing the Chairman, Vice Chairman, and members of the Navajo Tribal Council are contained in 11 N.T.C. Chapters 1 -13. Chapter 13 is entitled “Penal Provisions.” The provisions of that chapter deal with bribery of electors, coercion of electors, intimidation of an elector by his employer, interference with an election officer, violation of duty by election officers, and illegal registration for voting. The chapter further sets forth penalties for violation of the provisions which are enforced through the courts or the Advisory Committee.
Section 245 of Chapter 13 provides that a member of the Election Com*27mission shall not “knowingly and willfully fail or neglect to perform any duty under any part of this chapter.” A Statement of Grievance alleging a violation of 11 N.T.C. Chapter 13, § 245 raises the question of whether such an alleged violation is within the scope of review by the Commission. The Court will not at this time decide whether violations of Chapter 13 are the exclusive jurisdiction of the courts and the Advisory Committee but will review appellant’s Statements of Grievance for whether, on their face, they sufficiently allege an election unfairness or fraud under 11 N.T.C. Chapter 1-13 as a whole and under the guidelines for election review set out in Johnson v. June, 4 Nav. R. 79 (1983), (hereinafter cited as Johnson.)
Johnson sets forth standards for the court to apply when reviewing the actions of the Board in matters of election dispute. These standards follow the theories that election results are presumed to be regular and proper and that the contestant must overcome that presumption by showing that the alleged misconduct or irregularity was of such a nature that the outcome of the election was changed or a fair election was prevented.
Nowhere in the Statements of Grievance filed by the appellant is there any connection made between the publication of the wrong time for the polls to close and failure of any registered voter to vote for appellant. Even more telling, there is not a showing that a single registered voter failed to vote for either candidate because of a belief that the polls closed at 5:00 p.m. rather than 7:00 p.m. Appellant has not overcome the presumption that the election results were regular and proper. As this Court stated in Johnson “Speculation on the conduct of an election is not enough to overturn it. . . .” Appellant’s Statements of Grievance presented only speculation that the election was unfair or improper and that the outcome of the election was changed as a result of that unfairness or impropriety.
The same analysis applies to appellant’s allegations that a professional and impartial attitude was not demonstrated by the election representative as required by 11 N.T.C. Chapter 13, § 245. A person’s attitude is one of subjective interpretation and for an attitude to ever rise to the level of being judicially reviewable, there must be specific instances of conduct demonstrating the alleged “attitude.” Appellant’s Statements of Grievance do not contain those specific instances and do not show that even one voter failed to cast a ballot because of an election official’s improper attitude, much less that the result of the election was changed. Further, as the court pointed out above, Chapter 13 deals with specific prohibited conduct and alleged violations of Chapter 13 must set forth conduct prohibited by that Chapter.
The allegation that an unspecified percentage of the registered voters did not vote as a direct result of the publication of the wrong time for the polls to close suffers from the same failure to show that any voter failed to vote because of that publication. Appellant has not even demonstrated that a smaller percentage of people voted in the April 17, 1984, election than in other special elections.
*28Even though the court directed appellant to specify precisely which election law was violated, the appellant chose to rely upon her original assertions that 11 N.T.C. Chapter 13, §245 was violated by the release of the wrong information to the Navajo Times. As the court pointed out above, Chapter 13 deals with specific wrongful acts in connection with elections. Section 245 makes it unlawful for the Chairman of the Election Commission, a member of the Election Commission, any registrar, poll judge, poll clerk, or Special Election Supervisor to “knowingly and willfully fail to neglect to perform any duty under any part of this chapter” (emphasis added). Appellant neither sets forth the section violated nor claims that any election official knowingly and willfully violated that section. The affidavit supplied by an Angela Davidson regarding the incorrect voting time states that she is usually employed as a cook at the chapter house but on the day of the special election she was acting as a receptionist. She states that she gave the wrong information to the Navajo Times but there is no assertion that she released the incorrect poll closing time at the direction of an election official.
The court does not hold that “knowingly and willfully” is the standard by which all alleged violations of the election code will be reviewed. It is the standard established for alleged violation by election officials of 11 N.T.C. Chapter 13.
Although the burden of showing a violation of the election code is on the one contesting the election, the Court has reviewed 11 N.T.C. Chapters 1-13 together with the Statements of Grievance for any possible construction of a violation of the election laws and can find none.
Finally, the Court comes to the issue of whether the Commission acted properly in dismissing the grievance without a hearing.
11 N.T.C. § 51 sets forth the procedures for election contests. 11 N.T.C. § 51 (17) (a) states:
Within ten days of the incident complained of or the election, the complaining person must file with the Commission a statement setting forth the reasons why he believes the election law has not been complied with.
If, on its face, the statement of election contest is insufficient under the election law, the statement shall be dismissed by the Navajo Election Commission.
The Commision determines whether the Statement of Grievance sufficiently states a violation of the election law. This means that the grievance must specify what election law was violated. It must also contain sufficient facts that if proven to be true would indeed constitute a violation of the law. Further, under Johnson these facts must tend to rebut the presumption that the election was fair and show that but for the violation of the election law the result would have been different.
The function of this Court in reviewing the actions of the Commission is *29to determine whether the Commission abused its discretion or failed to follow its procedures. The Court cannot find that the Commission abused its discretion to determine the sufficiency of the Statements of Grievance or failed to follow its procedures.
The decision of the Commission is affirmed. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502806/ | OPINION
On December 1,1983, Rose M. Garcia filed a Petition for Validation of her marriage to Alfred Garcia, deceased. The petition set forth that Rose M. Garcia is an enrolled member of the Navajo Tribe of Indians and that decedent, Alfred Garcia, was a Mexican-American. The petition alleged that petitioner and decedent cohabitated and were recognized as husband and wife in the community. The petition also alleged a Navajo Traditional Wedding Ceremony on April 3,1959, and recited four children born of the union.
On December 8,1983, the trial court entered an Order denying the petition on the basis of 9 N.T.C. § 2. That section states:
Marriage between Navajos and non-Navajos may be validly contracted only by the parties’ complying with applicable state or foreign law (emphasis supplied).
This section was passed by the Tribal Council on October 29, 1956. This was more than two years prior to the traditional ceremony alleged in the petition for validation.
The case came to the Court of Appeals on the sole issue of whether a marriage between a Navajo and a non-Navajo may be validated.
The Court was impressed by the arguments of counsel for the petitioner which recounted a history of non-Navajos adopting a Navajo way of life and becoming a part of their community. One particular example was Jesus Arviso, a man of Mexican origin who became a Navajo leader. The Court recognizes the contribution and importance of many non-Navajos *31but finds that the provisions of the Navajo Tribal Code require it to affirm the decision of the trial court.
1 N.T.C. § 501 provides that a person who is at least one-fourth degree Navajo blood may become a member of the Navajo Tribe. 1 N.T.C. § 502 states that no one can become a Navajo except by birth. Consideration of these statutes along with 9 N.T.C. § 2 as set forth above compels this Court to hold that a Navajo and non-Navajo may have a valid marriage under the laws of the Navajo Nation only if they comply with applicable state or foreign law.
The Court recognizes that the Garcias had a long relationship and by this opinion does not intend to detract from the fact that they regarded themselves as married.
The Court by this decision does not decide the issue of whether the Garcias may have had a valid marriage under the laws of the state of their residence.
It is therefore Ordered that the decisions of the trial court be and hereby are affirmed. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502807/ | OPINION
This matter came before the Court for oral argument on November 16, 1984. It arose originally in the trial court upon a Petition for Paternity and Child Support.
On November 29, 1983, the trial court entered a judgment finding appellant to be the biological father of appellee’s minor child. A Notice of Appeal was filed from that judgment. Thereafter a Motion for New Trial on the basis of newly discovered evidence was filed with the trial court. That motion was denied and a Notice of Appeal was filed from that denial. The two Court of Appeals cases were consolidated and an appeal was allowed.
The Petition for Paternity and Child Support was filed on October 6, 1982. On February 24, 1983, the parties and the minor child submitted themselves to an HLA Blood Test. The results of that test gave the probability of appellant being the father at 76.2 percent. On June 22,1983, the parties and the minor child submitted to a Red Blood Cell Test. The report of that test indicates six matching systems were used. Under five of these systems the probability of paternity was 68.9 percent. The sixth, the Kidd system, showed an apparent exclusion. Under the Kidd system, appellant was positive for JK and negative for JK . Under the presumption that such a result makes both of appellant’s genes identical for JK , all offspring of *33such a person are expected to inherit the JKb marker. In some cases a rare gene at the Kidd locus has been found in Amerindians in Brazil. The presence of this rare gene in the appellant could change the expectation of finding the JK in the minor child.
The JK marker was not found in the minor child. The report of the Red Blood Cell Test stated that this result can be taken as evidence that appellant is not the father of the minor child or that both have a rare gene which would suggest paternity.
On June 28, 1983, counsel for both parties placed a call to Arizona Blood Services regarding the report from the lab. At that time counsel were informed that the only manner of determination whether appellant had such a rare gene would be to do a blood test upon appellant’s parents.
Appellant’s parents refused to have the tests. The case went to trial on November 3, 1983. On November 30, 1983, the trial court entered judgment in which appellant was found to be the father. The trial court ruled that only tests establishing non-paternity should be admitted in paternity cases. Accordingly, the trial court refused to give any weight to the results of either test.
After the trial, appellant’s parents agreed to submit to the tests. These were done on December 13, 1983. An affidavit signed by Robert C. Williams, Director of the Histocompatibility Unit of Arizona Blood Services stated that as a result of the December 13,1983, testing of appellant’s parents, appellant could be excluded as father of the minor child.
On December 28,1983, appellant filed a Motion for Reconsideration and New Trial on the basis of the affidavit of Robert Williams.
The Motion for New Trial was denied and appellant filed his Notice of Appeal.
The appeal was allowed on two questions of law:
1. Whether the trial court erred in the weight given to the results of the two blood tests of the parties and the minor child;
2. Whether the trial court erred in denying the Motion for New Trial.
Phillips v. Farley, 1 Nav. R. 69, 70 (1972), (hereafter referred to as Phillips), establishes the requirements for granting a Motion for New Trial on the grounds of newly discovered evidence. Those requirements are that the evidence:
1. Must be such as would probably change the result on a new trial;
2. Must have been discovered since the trial;
3. Must be of such a nature that it could not have been discovered before trial by due diligence;
*344. Must be material; and
5. Must not be merely cumulative or impeaching.
At oral argument of this case there was some discussion of whether all the requirements of Phillips have to be met or whether the existence of one element is sufficient to grant a motion for new trial on the basis of newly discovered evidence. This Court holds that all five requirements set forth in Phillips must be present. The Court further holds that all five requirements were present in this matter.
Evidence which would exclude appellant as father of the minor child would probably change the result on a new trial. The evidence was discovered after trial as it was only after trial that appellant’s parents consented to the blood tests and the results of those tests were made known. The evidence could not have been discovered prior to trial. Appellant had no power to compel his parents to submit to the tests and therefore the evidence was not in his control. The failure of appellant’s parents to consent to the blood test cannot, in this case, be ascribed to a lack of diligence on the part of the appellant. The evidence is certainly material to the issue of paternity and is not cumulative or impeaching as there was no evidence presented at trial as to the blood composition of the appellant’s parents.
The granting of a motion for new trial on the basis of newly discovered evidence does not in itself constitute a ruling in advance on the admission of such evidence or the weight to be given to such evidence. Proponent must still present the evidence in a proper and admissible fashion and the trier of fact must still determine the weight to be given to the evidence presented to the court at new trial.
At new trial the trial shall be only upon the evidence of the blood tests performed upon the parties, the minor child, and appellant’s parents by Arizona Blood Testing Services unless the trial court finds that fairness and justice to all the parties requires that there be a complete rehearing as to all evidence.
As the new trial may dispose of all questions regarding the weight to be given to blood tests, the Court at this time makes no decision upon that issue. Upon final judgment at new trial, the parties will have the right to raise on appeal the issues of sufficiency of the evidence and the weight to be given to the evidence.
It is therefore Ordered that this case be and hereby is remanded to the trial court for new trial consistent with this order. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502808/ | OPINION
On December 5,1983, the trial court entered a decree of divorce. The trial court order provided for custody and support of the two minor children and a division of the marital property. The appellee was awarded the parties’ two bedroom hogan at Iyanbito. The trial court found that the parties had stipulated the value of the hogan to be $18.50 per square foot. There was no finding as to the number of square feet. The rest of the community property was awarded to the party in possession on the day of hearing.
The appellant filed a Notice of Appeal challenging the trial court’s award of the Iyanbito hogan to the appellee. Appellant asked for a determination of the fair market value of the hogan and for a one-half interest in that market value.
An appeal was allowed on the issue of whether the trial court abused its discretion in awarding the hogan to the appellee. The parties were ordered to submit to the Court a written stipulation as to the square footage. The parties stipulated that by external measurements the square footage is 732 square feet and by internal measurements it is 576.13 square feet. Using the value of $18.50 per square foot stipulated by the parties, the value of the hogan ranges from $10,656.00 to $13,542.00.
9 N.T.C. §404 requires that “each divorce decree shall provide for a fair and just settlement of property rights between the parties. . . .” In Shorty v. Shorty, 3 Nav. R. 151 (1982), [hereafter cited as Shorty], the Court set *36forth guidelines to assist the trial courts in determining what is fair and just. Eleven factors were listed in Shorty. These factors include the financial circumstances of the parties and the circumstances of the minor children. The District Courts were directed to consider all the circumstances of the parties when making a division of marital property.
The Court considered the relevant facts of this case. Appellant was awarded custody of the two minor children. Appellant’s gross salary at the time of hearing was approximately two-thirds of appellee’s. The parties received an approximately equal division of household goods and automobiles. The parties were awarded their separate property, the value of appellee’s appearing in excess of appellant’s. Appellee was ordered to pay approximately $2,000.00 more of the community debts but these debts were generally on his share of the community household goods and his vehicle.
A consideration of the factors in Shorty in light of the facts set forth above leads this Court to conclude that it was an abuse of discretion to award the entire hogan to the appellee.
The Court agrees that an equal division of marital property is not mandated. This does not mean, however, that there is not to be a balancing of all the circumstances of the parties. In fact, this balancing of circumstances is precisely why an equal division of property is not required in most jurisdictions. Under the flexibility thus allowed a court may, for example, offset one party’s lower earning capacity by a larger share of the property. The desired end result is for the parties to start divorced life on some sort of equitable basis.
A balancing of the circumstances of the parties in this case requires at the very least that the marital property be divided equally.
It is therefore Ordered that appellee pay to the appellant as and for her interest in the parties’ hogan the sum of six thousand dollars ($6,000.00) on or before May 1,1986. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502809/ | OPINION
On March 7, 1985, at 4:20 p.m. Arnold Sells, Fiscal Director of the Judicial Branch, was served with an order to appear on March 8,1985, at 9:00 a.m. in Tuba City District Court and Show Cause as to why he should not be held in contempt for failure to process travel authorizations for two Tuba City Court employees.
On March 8, 1985, the Chief Justice issued a Writ of Prohibition restraining Robert B. Walters, Judge of the Tuba City District Court, from any further proceedings against Arnold Sells in regard to the travel authorizations pending a hearing on the Writ. Judge Walters was ordered to submit a brief by April 15,1985, on why the Writ should not be made permanent. Oral argument was set for April 29,1985.
Judge Walters neither submitted a brief nor appeared for oral argument. The Court feels that the issues involved are of sufficient significance to warrant an Opinion as well as an Order.
The Court views this case as containing two major issues:
1. The jurisidiction of the trial court to issue the Order to Show Cause; and
2. The authority of the Court of Appeals to issue a Writ of Prohibition.
7 N.T.C. §253 establishes the subject matter jurisdiction of the trial courts of the Navajo Nation and 7 N.T.C. §255 provides that “the trial court shall have power to issue any writs or orders necessary and proper to the complete exercise of its jurisdiction.”
This Court affirms the principle that the Navajo Tribal Courts have inherent power to enforce their orders and uphold the dignity of the court through contempt powers. This Court further affirms the holding in the case of In the Matter of Summary Contempt of: Leonard R. Tuchawena, 2 *38Nav. R. 85 (1979), [hereafter Tuchawena], that the trial judge has a great deal of discretion in determining what constitutes contempt and that “Absent a clear abuse of discretion or conduct on the part of the judge which is so unreasonable as to be classified as capricious and arbitrary, this Court will not disagree with a trial judge’s determination.” Tuchawena, p. 89. The holding in Tuchawena does not, however, clothe a judge with authority to use the contempt powers of the court to punish actions which displease him personally or are outside the jurisdiction of the court. The use of the word “discretion” as applied to judges or courts means discretion to act within certain boundaries. For judicial discretion those boundaries are the rules and principles of law as applied to the facts of a particular case. Black’s Law Dictionary, 5th ed.
Contempt of court is generally defined as willful disobedience of a court’s orders or action which bring the authority of the court into disrespect or disregard, interferes with parties or witnesses during litigation, or otherwise obstructs the court in the administration of justice. See Black’s Law Dictionary, 5th ed. and 17 Am. Jur. 2d Contempt §3.
In the instant case, Arnold Sells was ordered by Judge Robert B. Walters to show cause why he should not be held in “. . .Contempt of Court for your interfering with the operation of this Court and Court staff by refusing to issue travel authorization for staffs travel to Window Rock for Navajo Nation Childrens’ Code orientation on March 6 and 7,1985.”
The travel of staff of the Judicial Branch is an administrative, not a judicial matter. The Chief Justice is the administrative as well as the judicial head of the Judicial Branch. See 7 N.T.C. §371; Tribal Council Resolution CO-69-58 Preamble (1) and (2) as contained in note to 7 N.T.C. § 201; Minutes of Tribal Council Discussion, October 17, 1958; Personnel Policies and Procedures of the Judicial Branch § VIII.
The minutes of the Tribal Council Discussion at the time Title 7 was being discussed contain some indication of how the Tribal Council understood the administrative duties of the Chief Justice. Laurence Davis who was the attorney advising the Tribal Council gave the following explanation of the administrative duties of the Chief Justice. What is now Title 7 of the Navajo Tribal Code was enacted with Mr. Davis’ explanation unchanged.
Administrative duties of Chief Justice, Section 7. Now this section provides that the Chief Justice besides presiding over all Appeal Courts will have the work of supervising the work of all the judges. He will advise the Chairman as to whether any probationary judge should be offered a permanent appointment and as to whether any judge is falling down on the job and should be removed from office. Gentlemen, the question has frequently arisen, “To whom are the judges responsible” and it was never possible to answer that question. They were responsible to the voters *39and they were responsible to the Council because the Council fixed their salaries, but there was no clear line of authority. Nobody could tell a judge, “Look here Judge so and so, you are supposed to go to work at eight o’clock in the morning instead of ten o’clock.” Under this resolution the Chief Justice would definitely have the responsibility of seeing to it that the judges got to work on time and did their jobs. Record of the Navajo Tribal Council, October 17,1958.
The administrative authority of the Chief Justice is a recognized principle of court administration:
Effective and consistent direction of effort and application of policy in a court system require that administrative authority within the system be clearly established. Every court unit within the system should manage its internal business in a way consistent with the general rules and policy of the system as a whole. The work of every unit should be coordinated with that of other units that stand in vertical or parallel relationship to it. The system as a whole should maintain effective external relationships with other agencies of government, with the bar, and with various segments of the public. These tasks must be performed by someone in particular. Establishing administrative responsibility consists of specifying that person and his duties and authority.
In assigning administrative responsibility in court systems, the general principle of administration should be observed that such responsibility should be vested in individuals, not groups. Effective administration requires taking risks, assuming burdens, conferring approval, imposing rebuke, and answering to others for failures. The pains and penalties inherent in asserting administrative authority are immediate and apparent, while the rewards for doing so usually come only in time and then often only in the form of private satisfaction. These characteristics of the administrative task make the group or committee an unwieldy and unreliable instrument in which to repose ultimate administrative responsiblity. American Bar Association, Standards Relating to Court Organizations, 1974, pp. 15-16.
The Court recognizes that American Bar Association standards in regard to court organization are not binding upon the Navajo Nation. The Court finds, however, that the adoption of the ABA Code of Judicial Conduct and the ABA Code of Professional Responsiblity is a recognition by members of the Navajo Nation Judiciary and the Navajo Nation Bar Association of the excellence of American Bar Association standards.
Pursuant to the administrative authority of the Chief Justice, as contained in the above authorities, the Chief Justice has issued certain administrative orders. One such order issued July 12,1984, and titled “Authorization for Travel” requires that all requests for travel outside the local judicial district by Judicial Branch staff be submitted to and approved by the Chief Justice. In addition, the tribal Office of Financial Services requires the signature of either the Chief Justice or the Court Administrator before travel claims are processed and paid.
*40Mr. Sells is an employee of the Judicial Branch and works in the Office of the Chief Justice. His position as Fiscal Director is part of the administrative staff of the Office of the Chief Justice of the Judicial Branch. The Fiscal Director works under the direction of the Chief Justice and not the judges collectively or individually. Thus, the Order to Show Cause issued to Arnold Sells was an attempt by the trial court to hold Mr. Sells in contempt for an action not properly within the jurisdiction of the trial court or the administrative authority of the trial judge. Further, it was an attempt to hold Mr. Sells in contempt for failure to act in a situation where he is not empowered to act.
The Court holds that the Order to Show Cause in this matter exceeds both the judicial and administrative authority of the trial judge.
The Court further holds that insofar as this Opinion conflicts with that portion of Gudac v. Marianito, et. al., 1 Nav. R. 385 (1978), [hereafter Gudac], which holds that the judges collectively control the personnel policies of the Judicial Branch; that portion of Gudac is overruled. That holding in Gudac is not in keeping with Title 7 of the Navajo Tribal Code, with the legislative history of Title 7 of the Tribal Code, or with principles of sound court administration. Further, that particular holding of Gudac is not in keeping with the “universally written” principles of appealability which were announced in Gudac for the reason that the issue of who sets the personnel policies of the Judicial Branch never appeared in the case prior to the Opinion. In addition, the Gudac Court’s construction of Title 7 N.T.C. Subchapter 9 cannot be accepted under any principles of statutory interpretation and construction.
The next issue which the Court addresses is that of the authority of the Court of Appeals to issue the Writ of Prohibition.
Subchapter 5 of Title 7 of the Navajo Tribal Code deals with the Court of Appeals. 7 N.T.C. § 302 states:
The Court of Appeals shall have jurisdiction to hear appeals from final judgments and other final orders of the Trial Court....
§303 of 7 N.T.C. states:
The Court of Appeals shall have the power to issue any writs or orders necessary and proper to the complete exercise of its jurisdiction, or to prevent or remedy any act of the Trial Court beyond such court’s jurisdiction, or to cause the Trial Court to act where the Trial Court unlawfully fails or refuses to act within its jurisdiction.
Thus, under the statutory authority of the Navajo Tribal Code, the Court of Appeals has both appellate jurisdiction and supervisory jurisdiction. Its appellate jurisdiction is contained in 7 N.T.C. § 302 which grants the Court of Appeals the authority to hear appeals from final judgements and orders of the trial court. Its supervisory jurisdiction is contained in § *41303 of N.T.C. which grants the Court of Appeals the power to issue writs.
Supervisory jurisdiction is an established concept of court organization:
Supervisory jurisdiction, or the power of superintending control, over courts of lower rank in the same jurisdiction is a kind of original jurisdiction frequently conferred upon appellate courts, especially the highest court of the jurisdiction. 20 Am. Jur. 2d, Courts, § 111.
Supervisory jurisdiction may be exercised to compel action by an inferior court or to keep an inferior court within its jurisdiction, as by the issuance of a Writ of Mandamus, or a Writ of Prohibition. 20 Am. Jur. 2d Courts, § 115.
The highest appellate court should also have authority to entertain original proceedings, such as those for writ of mandamus or prohibition, in aid of performing its responsibilities as a court of review. This authority is generally and properly held to be an inherent aspect of the highest court’s status as such. American Bar Association, Standards Relating to Court Organization, p. 34.
Additionally the concept of the supervisory jurisdiction of the Navajo Court of Appeals is sanctioned not only by Title 7 of the Tribal Code but by the legislative history of Title 7:
Section 6 speaks of the jurisdiction of the Court of Appeals. Now you know the present appeal procedure is for two judges, other than the judge who heard the case, to hear the case that is appealed. Under this new procedure there would be one judge permanently assigned to appeals, that is the Chief Justice. Now, also this would provide that the Court of Appeals would have the power to issue orders to the Lower Courts requiring the Tribal Court to refrain from exceeding its jurisdiction or to act if it failed to act. In other words, if the judge in the Tribal Court refused to do anything about a case under the present system, there is nothing you can do, but under the new system which is provided here, the Court of Appeals could issue an order and tell him to get busy. That is all in accordance with one of the principal purposes of this resolution which is to set up supervision over the judges we think we don’t have at the present time, and to set up proper supervision with supervision from the judicial branch rather than interference from any other branch of the Government. Record of the Navajo Tribal Council, October 17, 1958. (The above is an explanation by Laurence Davis of the then proposed Court of Appeals. The Tribal Courts were established with this explanation unchanged.)
Further, the Court calls attention to Tribal Council Resolution CO-69-58, Preamble (2). This part of the Preamble to the Tribal Council Resolution, which established the Navajo Tribal Courts, states that an appellate court is needed to supervise the work of the trial courts and the trial judges.
The Court therefore holds that a Writ of Prohibition or Writ of Superintending Control is a proper exercise of the supervisory jurisdiction of the Court of Appeals. The Court further holds that the Writ of Prohibition issued in the instant matter was proper and within the authority of the Court of Appeals.
*42It is therefore Ordered that the Writ of Prohibition be and hereby is made permanent. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502810/ | OPINION
There are two issues that must be addressed by the Court in this prohibition proceeding. The first is whether the appointment of a retired judge as Acting Chief Justice or Special Presiding Judge is authorized under Navajo Tribal law. The second issue is whether Respondent, the Honorable Robert B. Walters, should be permanently prohibited from further participation in the criminal proceedings below involving the Petitioner.
The following is the summary of facts in this matter:
1) On March 8,1985, criminal charges alleging three offenses of making or permitting a false tribal voucher, theft, and fraud in violation of the Navajo criminal code, were filed with the Tuba City District Court against the Petitioner, Nelson J. McCabe. The Petitioner is the Chief Justice of the Navajo Nation, the chief judicial officer of the Judicial Branch. A criminal summons was issued that same day, directing the Petitioner to appear for arraignment on March 11,1985.
2) On March 11, 1985, the Petitioner appeared before the Honorable Robert B. Walters for arraignment, entered a plea of not guilty to the criminal charges, and was released on his own recognizance.
3) On March 14,1985, the Honorable Judge Walters apparently on his own motion, modified the terms of Petitioner’s release order and as a condition of his personal recognizance release, ordered the Petitioner relieved from performing his judicial duties and / or exercising judiciahfunctions of his position as Chief Justice of the Navajo Court of Appeals. There was no written motion filed with the Court, nor was notice provided to Petitioner.
4) On March 18, 1985, the Petitioner filed an Application for Writ of Prohibition with the Court of Appeals, requesting that the Respondent be restrained from taking any further action in Petitioner’s criminal cases and *44all other related criminal proceedings involving Judicial branch personnel, on the grounds that the Respondent exceeded the court’s jurisdiction and that the Respondent was biased. That same day the Petitioner, as Chief Justice, issued the Writ of Prohibition granting the relief requested in the Application, and also restrained the Director of the Division of Public Safety from executing any orders of the Tuba City District Court in the criminal cases cited.
5) On March 20, 1985, the Petitioner, as Chief Justice, appointed a retired judge, Honorable Dean Wilson, as special presiding justice of the Court of Appeals for all the criminal proceedings pending in the Tuba City District Court, involving judicial staff personnel, including the Petitioner. The Chief Justice appointed a retired judge due to the apparent conflict of interest that existed for all district judges in being called as witnesses in the criminal cases.
6) On Friday, March 22, 1985, at 5:00 p.m., the Respondent issued a bench warrant for Petitioner’s arrest, for violation of the Order modifying the conditions of his release, in that Petitioner continued to perform his official duties as the Chief Justice of the Navajo Nation. The warrant was unsuccessfully executed by tribal police officers on Sunday afternoon, March 24,1985, at Petitioner’s mother’s residence.
7) On March 25, 1985, Petitioner filed with the Court of Appeals, a Motion for an Order Affirming the Writ of Prohibition, and a Petition for An Order to Show Cause against the tribal police officers who attempted to execute the arrest warrant.
8) On March 27,1985, the Honorable Dean Wilson vacated the Writ of Prohibition, dated March 18,1985, and issued an Alternative Writ of Prohibition restraining the Honorable Robert Walters from, in any way, restricting the Chief Justice from performing the duties of his office.
9) On April 3, 1985, Respondent filed a Motion to Convene a Three-Judge Panel of the Court of Appeals and to Rescind the Appointment of Judge Wilson.
10) On April 12, 1985, the Petitioner filed with the Tuba City District Court a Motion to Disqualify Respondent.
11) On April 12, 1985, twenty-two criminal defendants filed with the Court of Appeals an Application for Leave of Court to Include Similarly Situated Navajo Defendants in the Writ of Prohibition requesting that the Respondent be restrained from taking any action in their criminal proceedings, pending in the Tuba City District Court.
12) On April 23, 1985, the Honorable Dean Wilson, issued an Order dismissing the prohibition proceeding and vacating the hearing set for April 29, 1985, to become effective upon the Honorable Robert Walters’ approval of an order disqualifying himself from Petitioner’s criminal cases. To date, no such disqualification order has been approved by Respondent.
*4513) On April 29, 1985, a three-judge panel of the Court of Appeals, composed of three retired judges, held a hearing on the Petitioner’s Application for Writ of Prohibition and Motion to Affirm the Writ of Prohibition.
Addressing the first issue, Respondent claims that the Navajo Tribal Code requires that an Acting Chief Justice or Special Presiding Justice must be appointed from among the district judges and that the appointment of Honorable Dean Wilson, a retired judge, as Special Presiding Justice of the Court of Appeals in the prohibition proceeding is improper. Respondent relies on 7 N.T.C. § 372 (1977 Edition) which provides in pertinent part:
“The Chief Justice of the Navajo Tribe shall designate one judge of the Tribal Court to act as Chief Justice whenever the Chief Justice is absent from the territorial jurisdiction of the Trial Court, is on vacation, ill or otherwise unable to perform the duties of his office, or whenever the office of the Chief Justice is vacant. . .
This Court does not dispute Respondent’s interpretation of the mandate of 7 N.T.C. § 372. However, the instant case presents a situation not contemplated when that section was adopted. That is, when all district judges are listed as witnesses in the trial court proceedings, who then, pursuant to 7 N.T.C. § 372, is qualified for appointment as Acting Chief Justice of the Court of Appeals to hear matters arising before the appellate court. Section 372 does not address this situation. Absent a specific statutory provision, the Court shall consider the tribal code sections dealing with the judiciary branch as a whole, to determine the legislative intent for guidance in this matter. It is clear that the Navajo Tribal Council, by enacting 7 N.T.C. § 372, intended that an Acting Chief Justice be appointed first from among the district judges. Yet, to rely solely upon Section 372 in the instant case would mean that no Acting Justice could be appointed, given the conflict of interest that exists for all the district judges in being called as witnesses in the trial below. Such a result could not have been intended by the Council. Where a strict construction of tribal law would lead to an absurd result, the Court must balance the effects of a literal interpretation against the legislative intent and a reasonable means to accomplish it. In reviewing the provisions of Title 7, the Council established a secondary pool of judges from which an appointment can be made. Although not specifically authorizing appointment as Acting Chief Justice, 7 N.T.C. § 353 (i) allows for appointment of retired judges by the Chief Justice, as follows:
“Retired judges shall be ineligible to hear any case in any court of the Navajo Tribe, unless the Chief Justice shall, with the consent of the retired judge involved, call him back for temporary duty to help relieve congestion in the docket of the Navajo courts.”
*46It is within the province of the judiciary to construe and interpret legislation and the terms used therein. It is the Court’s determination that congestion exists in the Court of Appeals when no appointment to the Court of Appeals can be made pursuant to 7 N.T.C. § 372, thereby authorizing appointment from the pool of retired judges pursuant to 7 N.T.C. § 353 (i). In considering the provisions of Title 7 as a whole, the Court holds that the appointment of Honorable Dean Wilson, a retired judge, as Acting Chief Justice or Special Presiding Justice in this proceeding is authorized by Navajo Tribal law and is therefore proper.
With respect to the two remaining appointments of retired judges to this three-panel Court of Appeals panel, 7 N.T.C. § 301 establishes a Navajo Tribal Court of Appeals to consist of a Chief Justice and two Associate Justices. Appointment of Associate Justices are to be by the Chairman of the Navajo Tribal Council with the consent of the Navajo Tribal Council from among those recommended by the Judiciary Committee. This particular section became effective in 1978, but to date the Chairman has never exercised his authority under this provision and thus, there have been no appointments of Associate Justices of the Court of Appeals pursuant to this section. Were this Court to adopt a strict and literal interpretation of Section 301, then a logical extension of that analysis can only result in no properly constituted Court of Appeals since May 4,1978.
It is clear that the Navajo Tribal Council intended to create a three-judge Court of Appeals, with a Chief Justice as its presiding judge. It is also clear that the three Justices of the Court of Appeals were to be permanent appointments, separate and distinct from the judges of the district courts. The pre-1978 provision dealing with the Court of Appeals established only the position of the Chief Justice as a permanent Court of Appeals position and provided that the two Associate Justices be selected from among the district judges. 7 N.T.C. § 301, prior law.
In the situation at hand, where the Executive branch has failed to act, does it necessarily follow that there can be no Court of Appeals appointments authorized under tribal law. This Court thinks not. Absent executive action authorized under tribal law, the Chief Justice in administering the Court of Appeals and as the chief judicial officer can properly look to prior law as guidance for appointments of associate justices to the Court of Appeals. In fact, the Chief Justice has since 1978 utilized 7 N.T.C. § 301, enacted prior to 1978, as the basis for appointing tribal judges as justices to the Court of Appeals. To have done otherwise would have resulted in appellate cases pending before the Court of Appeals for six years without any final decision.
It can reasonably be inferred that the Navajo Tribal Council ratified this interpretation, else it would have appropriated the necessary funds to allow for appointment of Justices by the Chairman pursuant to the 1978 *47amended provisions. Application of the pre-1978 Section 301 is a reasonable means of accomplishing the Tribal Council’s purpose that there be established a 3-judge Court of Appeals.
However, application of Section 301, whether under post-1978 or pre1978 law, does not dispose of the issue altogether. In the instant case, authority for appointment of retired judges to the Court of Appeals rests on 7 N.T.C. § 353 (i) and its application is identical to that discussed above relating to Judge Wilson’s appointment. Thus, the appointment of retired judges to the Court of Appeals in this proceeding is authorized under tribal law and is proper.
In now considering the second issue presented to the Court — whether the Respondent should be permanently prohibited from further participation in Petitioner’s criminal proceeding now pending before the Tuba City District Court, the Court feels it necessary to establish the parameters of this prohibition proceeding.
To begin, Petitioner is the only party who has filed Application for Writ of Prohibition and has standing to request this remedy; therefore, the Court can only consider the issues raised by Petitioner and Respondent. The Court will not consider the propriety of permanently prohibiting Respondent’s action in the criminal proceedings involving judicial personnel other than Petitioner, presently pending before the Tuba City District Court, for the reason that none of those individuals have requested relief from this Court.
The Court will also not consider the alleged violations by Petitioner of the Navajo Code of Judicial Conduct due to the recent Navajo Tribal Council action ordering the suspension of the Petitioner as Chief Justice, thereby making this issue moot. See Resolution of the Navajo Tribal Council, No. CMY-46-85, May 9,1985.
In addition, the Application for Leave of Court to Include Similarly Situated Navajo Defendants in the Writ of Prohibition, filed by the twenty-two criminal defendants, charged with various criminal violations in the Tuba City District Court, is denied for failure to establish grounds entitling them to the relief requested and they have an adequate remedy at law by means of an appeal.
A Writ of Prohibition is a discretionary writ and is appropriately issued where the trial court is proceeding without or in excess of its jurisdiction, or has abused its discretion in exercising its function over matters within its authority to decide and Petitioner has no plain, speedy, and adequate remedy at law. 63A Am. Jur. 2d, Prohibition § 133. This Court’s authority to issue a writ of prohibition is established at 7 N.T.C. § 302, which grants to the Court original jurisdiction to hear cases where a special writ or order is necessary or proper to carry out its jurisdiction, and supervisory jurisdiction over a trial court acting beyond its jurisdiction. Begay v. *48Honorable Tom Tso, 4 Nav. R. 122 (1983). This proceeding does not involve a trial court acting without jurisdiction, rather the dispute between the parties centers on a trial court’s action in excess of its jurisdiction and its abuse of discretion. There has been no objection by Petitioner to the trial court’s jurisdiction over the subject matter and the parties in the criminal proceeding below. Petitioner claims that Respondent exceeded the district court’s criminal jurisdiction by ordering Petitioner to temporarily step down from his position as Chief Justice of the Navajo Nation as a condition of release on his personal recognizance.
It is Respondent’s position that the release terms are authorized under 17 N.T.C. § 1813, which gives discretion to the district judge in setting the conditions of bail. Section 1813 provides:
“The judges of the Trial Court of the Navajo Tribe are hereby authorized to impose conditions of a date of appearance and such other conditions upon bail as are necessary or proper.”
A review of the tribal code sections addressing bail, reveals that bail was intended to include release from custody by either payment of a cash bond or personal recognizance release, and that the purpose of bail is to insure that the criminal defendant appear at any subsequent hearing. The discretion given to the district judge under Section 1813 authorizes the imposition of condition on release that bear a reasonable relationship to insuring defendant’s appearance. These may include conditions such as requiring the defendant not leave the court’s jurisdiction, or not to violate any tribal laws, or refrain from consumption of alcohol or other similar requirements. This Court fails to see any nexus between the district court’s requirement, that Petitioner be relieved of his duties as Chief Justice, as a condition of release from custody, and how this condition in any way insures Petitioner’s appearance at a subsequent hearing. Generally, the fact that a criminal defendant is employed is a factor justifying release on personal recognizance, and thus, it was an abuse of discretion to require a criminal defendant to leave his employment as a condition of release, as the Respondent has done in Petitioner’s case.
Moreover, the district court exceeded its jurisdiction by ordering the Chief Justice of the Navajo Nation, a judge of a higher court, relieved from performing his judicial duties or exercising the judicial functions of his position during the pendency of the criminal proceeding as a condition of bail. In essence, the district court ordered, without authority, the suspension of the Chief Justice during the pendency of his criminal proceeding. No case decision nor any other legal authority can be found to justify removal or suspension of a superior court judge by a lower court. It is well settled that it is the superior court who possesses the authority to remove or suspend a lower court judge under the supervisory powers of an appel*49late court, and not the reverse as Respondent claims. 20 Am. Jur. 2d, Courts 111-117; 53 A.L.R. 3rd 882. In the Navajo judicial system, 7 N.T.C. § 303, clearly establishes the supervisory jurisdiction over the district courts in the Court of Appeals of the Navajo Nation, and the power to remove or suspend the Chief Justice rests solely with the Navajo Tribal Council, not with a district court judge. 7 N.T.C. § 352 specifically grants removal authority of the Chief Justice to the Navajo Tribal Council upon the recommendation of the Advisory Committee of the Navajo Tribal Council. It was the intent of the Council that it alone retains the power to remove the Chief Justice, and where the statute is specific, no other entity possesses that removal authority under its discretionary powers. Where the district court has exceeded its jurisdiction without legal authority to so act, the legal remedy of appeal is inadequate as a matter of law and issuance of a writ of prohibition to prevent further actions in excess of jurisdiction is proper. For these reasons, the Alternative Writ of Prohibition issued on March 27,1985, restraining the Respondent from, in any way, restricting the Petitioner, as Chief Justice of the Navajo Nation, from performing the duties of his office is hereby made permanent.
Petitioner in his Application for the Writ of Prohibition has also requested that Respondent be disqualified from further participation in his criminal proceeding based upon Respondent’s bias and prejudice preventing him from acting impartially. 7 N.T.C. § 303 grants the Court of Appeals supervisory jurisdiction or superintending control as the basis for interfering with an inferior court in the exercise of its jurisdiction where the lower court has departed from proper judicial activity or become dictatorial or oppressive in their conduct, thereby denying a party an impartial tribunal. A review of the proceedings below raises questions concerning the impartiality of the Respondent.
To begin, it appears that the Respondent failed to comply with the Rules of the Court regarding motions. New Rules of Pleading and Motion were adopted by the district judges on April 23, 1982. Rule 4 (d) of the rules requires that motions be made in writing and that copies of all motions filed with the court be served on the opposing party. The opposing party is then given five days from the date of receipt to file a response. The underlying purpose of these rules is to insure that notice is given to the parties prior to the Court’s action on a motion, in conformity with basic notions of due process guaranteed under the Indian Civil Rights Act and the Navajo Bill of Rights. It is unclear from the district court’s record who made the Motion for Modification of Personal Recognizance Release that was granted by Respondent on March 14, 1985, ordering Petitioner relieved from performing his judicial duties as Chief Justice of the Navajo Nation. No written notice was filed with the District Court, nor did the Respondent state in its Order of March 14, 1985, who made the Motion. *50Given the requirements of Rule 4(d), together with the due process protections guaranteed by the Indian Civil Rights Act, and the Navajo Bill of Rights, the Court at the very least should have provided notice to the Petitioner of the relief requested in the Motion, prior to granting it. Especially in view of the fact that the Motion requested change in the conditions of Petitioner’s release, violations of which could result in his incarceration, and as stated earlier conditions beyond the lower court’s authority to impose. In a case decided by this Court interpreting prior rules of motion that did not specifically require service of the motion on the opposing party, the Court nevertheless held that due process, at the very least, requires that a party receive a copy of a Motion and have an opportunity to respond before the matter could be decided by the district court. Sweetwater Chapter v. Teec Nos Pos Chapter, 2 Nav. R. 13, 14 (1979). Notably, Respondent participated in that decision as an Associate Justice of the Court of Appeals panel.
Procedural error alone is insufficient to warrant disqualification of a judge. However, in this case, Respondent’s enforcement actions against Petitioner for violations of an order beyond the court’s jurisdiction combine to prejudice the Petitioner and to raise a fair presumption that the Respondent is incapable of according the Petitioner a fair trial. To compound its already improper actions, and obviously in retaliation against Petitioner for issuing the Writ of Prohibition restraining the Respondent from further action in the criminal proceedings involving judicial personnel, Respondent nonetheless proceeded to enforce the modified release order by issuing an arrest warrant against the Petitioner. Respondent obviously wanted to insure Petitioner’s incarceration during the weekend since the arrest warrant was not issued until 5:00 p.m. on Friday, March 22, 1985, but was unsuccessfully executed by tribal police officers on Sunday afternoon, March 24, at Petitioner’s mother’s residence.
Impartiality of the trial judge is a basic right of a criminal defendant. In the situation at hand, the actions of the Respondent in disregarding court rules of procedure designed to protect the due process rights of litigants, and then use of its enforcement power by means of an arrest warrant intended to result in Petitioner’s incarceration over the weekend can only be characterized as oppressive and appear to be directed at Petitioner, for the sole reason that he is the Chief Justice and Respondent’s superior. Were Petitioner any other individual, beside being the Chief Justice of the Navajo Nation, the personal recognizance release would have been sufficient to assure the Court that he would appear at any subsequent hearing, and thus, the Court’s unauthorized modification of the release order and the enforcement tactics utilized leads this Court to conclude that Respondent is prejudiced against the Petitioner in the proceeding below.
Further, the legal remedy of appeal is inadequate in Petitioner’s case. *51Respondent has failed to rule on Petitioner’s Motion to Disqualify despite this Court’s modification of the Writ of Prohibition that narrowly restrained Respondent’s actions, and gave Respondent ample opportunity to decide the disqualification issue. To remand this matter back to the district court for ruling on the Motion to Disqualify unnecessarily delays prosecution of the case and imposes additional time and expense on the parties, where Respondent’s lack of impartiality is apparent from the records and where the result must be that of Respondent’s disqualification. Should this case be remanded below and Respondent deny the Motion, then this issue will again be before this Court.
It is therefore ordered that Respondent is hereby disqualified from further participation in the criminal proceeding pending in the Tuba City District Court involving the Petitioner, and the Alternative Writ of prohibition is hereby modified to include this provision and is hereby made permanent. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502812/ | OPINION
This case comes before the Court upon certified questions from two District Courts. These questions arose during Forcible Entry and Detainer actions against Mutual Help Housing participants. The Court is asked to resolve two basic issues:
1. Whether Mutual Help Housing participants are tenants or equity owners;
2. If it is determined Mutual Help Housing participants are equity owners, whether Forcible Entry and Detainer may be used against them.
Mutual Help Housing is a program developed by the Department of Housing and Urban Development to assist members of Indian Tribes to become home owners. Under the program Indian Housing Authorities are authorized to borrow money to cover the costs of constructing housing in Mutual Help Housing projects. The Indian Housing Authorities are also authorized to enter into agreements with the Bureau of Indian Affairs and departments within the Department of Housing and Urban Development (HUD) for the provision of funds and services. The Indian Housing Authority (in the Navajo Nation, the Navajo Housing Authority) enters into agreements with individual participants with the goal being for the participant to become the owner of the home. The participants under the Mutual Help and Occupancy Agreement with the Navajo Housing Authority agrees to:
A. Maintain his house and grounds to the satisfaction of the Authority and pay for all utility charges.
B. Pay a monthly administration charge to the Authority for expenses and insurance.
*56C. Make additional payments toward home ownership based on his income and assets. These payments, called “equity payments,” will shorten the period of time before he becomes the owner of his house.
The monthly payments are used to establish an operating reserve and to reduce the loan balance attributed to a particular participant’s house. In addition, “annual contributions” from HUD are applied to reduce the loan balance. Initially, the participant may also be required to contribute labor and/or a lump sum payment. When the loan, which the Navajo Housing Authority incurred to construct the dwelling has been paid off, the participant is given title to the property.
It has been the practice of the Navajo Housing Authority to institute Forcible Entry and Detainer Actions (Eviction Proceedings) against Mutual Help Housing participants who become delinquent in their monthly payments. It is from such Forcible Entry and Detainer Actions in the trial courts that the issues have been raised in this Court. Specifically, the Mutual Help Housing participants assert that the use of Forcible Entry and Detainer against Mutual Help Housing participants deprives them of their property without due process of law as guaranteed under the Indian Civil Rights Act.
In determining the status of the Mutual Help Housing participants, the Court has considered the “Mutual Help and Occupancy Agreement” between the Navajo Housing Authority and the participant, the “Annual Contributions Contract” between the Navajo Housing Authority and HUD, and 44 Fed. Reg. No. 216, November 6, 1979. “Indian Housing; Final Rule.” All of these documents contain a number of ambiguities, referring at various time to “participants”, “homebuyers”, “tenant”, “rent”, “equity payments”, “homebuyer payments”, “lessee”, “lease-purchase contract”, etc.
The rights and duties set out in these documents, however, are more revealing. Mutual Help Housing participants may be required to furnish land, materials or equipment, labor and / or money as a down payment; they may make structural changes or additions to the house with the consent of the Navajo Housing Authority; in the event of destruction of the house, the proceeds from the insurance carried by the Navajo Housing Authority may be used to rebuild the house or to pay off the indebtedness on the house with the remainder to the participant; and in the event of abandonment by the participant or termination of the agreement, the participant must receive the balance in the voluntary equity payments account and his Mutual Help contribution after certain expenses are deducted.1
*57From the forgoing it is clear that the Mutual Help Housing participant has a status different from that of an ordinary tenant. The participant enters the agreement with the expectation of becoming a home owner; he usually contributes something in the nature of a “down payment”; he has use and control of the property in that he may assign his rights in the property and he may make structural changes or additions; and he has an interest in and a right to certain portions of insurance proceeds and Mutual Help contributions. The Court must conclude that a Mutual Help Housing participant has a property interest.
The Court has considered comparing that interest to those property interests commonly recognzied in other jurisdictions in the United States. The Court has decided, however, not to label the interest for two reasons. One, the trust relationship between Indian Tribes and the Federal Government creates property interests on reservations that are unique to tribes. Two, the involvement of the federal government in Mutual Help Housing creates rights and obligations that are not analogous to those involved in most property ownership situations.
The Court holds that Mutual Help Housing participants have a property interest entitled to the due process guarantees of the Indian Civil Rights Act.2
Next, the Court turns to the question of what is the due process to which Mutual help Housing participants are entitled.
The Court has reviewed the Rules and Regulations from 44 Fed. Reg. No. 216 which pertain to Mutual Help Housing. §805.424 provides procedures for termination of a Mutual Help Housing agreement. §805.424 (b) reads as follows:
(b) Notice of Termination of MHO Agreement by the IHA; Right of Homebuyer to Respond. Termination of the MHO Agreement by the IHA for any reason shall be by written Notice of Termination. Such notice shall state (1) the reason for termination; (2) that the Homebuyer may respond to the IHA in writing or in person of time regarding the reason for termination; (3) that in such response he may be represented or accompanied by a person of his choice, including a representative of the tribal government; (4) that the IHA will advise the tribal government concerning the termination; (5) that if, within 30 days after the date of receipt of the Notice of Termination, the Homebuyer presents to the IHA evidence or assurances satisfactory to the IHA that he will cure the breach and continue to carry out his MHO obligations, the IHA may rescind or extend the Notice of Termination; and (6) that unless thtere is such decision or extension the lease term and MHO Agreement shall terminate on the 30th day after the date of receipt of the Notice of Termination. The IHA may, with HUD approval, modify the provisions of the Notice of Termination relation to procedures for presentation and consideration of the *58Homebuyer’s response. In all cases the IHA’s procedures for the termination of an MHO Agreement shall afford a fair and reasonable opportunity to have the Homebuyer’s response heard and considered by the IHA. Such procedures shall comply with the Indian Civil Rights Act and shall incorporate all the steps and provisions needed to achieve compliance with state, local or tribal law with the least possible delay.
It is in the procedures set forth above that a Mutual Help Housing participant’s property interest must be protected. The Navajo Housing Authority has the flexibility under these provisions to establish guidelines and procedures to comply with due process requirements. There is opportunity for the Navajo Housing Authority to provide adequate notice of termination and time for the participant to either covert the default or work out a plan with the Housing Authority for correcting the default. The procedures outlined in §805.424 set forth above appear to the Court to be minimum requirements and there is no impediment to the Housing Authority in amplifying and expanding these procedures.
Although the Court does not intend to establish such guidelines and procedures for the Navajo Housing Authority, if a due process question comes before it in regard to Mutual Help Housing, the Court will examine the procedures carefully. Notice, opportunity to be heard, adherence to guideline and procedures, and the fairness of such guidelines and procedures, and any other requirements of due process and fairness will be considered by the Court.
Due to the flexibility which the Rules and Regulations in the above cited section given to the Indian Housing Authorities, to establish procedures to insure due process in terminations, and due to the provision for refund of the Mutual Help Housing contributions, the Court does not at this time hold the Forcible Entry and Detainer actions against Mutual Help Housing participants violate due process requirements.
In each such action the trial court has the duty to scrutinize the termination proceedings which were had prior to a Forcible Entry and Detainer action being filed. Further, if any issues regarding the termination guidelines and procedures are raised in the trial court in a Forcible Entry and Detainer action, such issues may also be raised on appeal. At that time this Court will consider whether a Mutual Help Housing Participant’s property interest has received the due process protections and guarantees to which it is entitled.
It is therefore Ordered that the proceedings in the trial courts, which are the subject of this case, proceed in accordance with this Opinion and Order.
. The Court notes that the Federal Register provides for Indian Housing Authority Homeownership financing under which the Homebuyer is required to execute and deliver a Promissory Note and Mortgage. The Court, however, is unable to determine whether this procedure is utilized by the Navajo Housing Authority.
. The contracts between HUD and the Indian Housing Authorities required that the Mutual Help Housing projects be subject to the Indian Civil Rights Act. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502813/ | OPINION
The appeal in this matter is from a decision of the Navajo Election Commission / Board of Election Supervisors (hereafter Board) on February 1, 1984.
Chichiltah Chapter elected chapter officers on September 6, 1983. Lewis Begay and Raymond Lancer were on the ballot as candidates for chapter president. Mr. Begay was elected by a vote of 262 to 246.
On September 8 or 9,1983, Mr. Lancer filed an election contest.
The statement of the appellant contesting the election set forth the following irregularities:
1. Misconduct of candidate
2. Misconduct of poll officials
3. Shortage of ballots
4. Voting irregularities
5. Coercion of voters
6. Counting irregularities
7. Certain voters denied right to vote
On October 5, 1983, the Navajo Election Commission voted to have a re-election for chapter president. The decision was based upon the short*60age of ballots at the September election. On October 14, 1983, the Court of Appeals restrained the Chichiltah Chapter from inducting a president and ordered the Board to hold a formal hearing on the election contest petition as provided in the Board’s Rules and Regulations.
On November 14,1983, the formal hearing was conducted. On January 28, 1984, the Board found the September 6, 1983, chapter election to be fair and voted to certify Lewis H. Begay as Chichiltah Chapter President. The decision was put in writing on February 1, 1984. On February 3, 1984, Raymond Lancer filed his Notice of Appeal.
At the hearing appellant withdrew the allegation of coercion of voters. Appellant also admitted in his Brief on Appeal that he was not able to present adequate evidence on the allegations of voting irregularities and counting irregularities. The shortage of ballots was stipulated to by both parties. As to the other allegations the Board found that the appellant had not presented sufficient evidence to show either that irregularities or misconduct occurred or that any alleged irregularities or misconduct affected the result of the election or affected the fairness of the election.
Under Nakai v. MacDonald, 1 Nav. R. 107 (1975), and under the Board’s Rules and Regulations for Disputes Arising on Local Chapter Elections, the Court of Appeals may review a decision of the Board to determine whether the decision is:
1. In violation of applicable provisions of the Constitution and laws of the United States of America;
2. In violation of the Navajo Tribal Code; or
3. Unsupported by the evidence contained in the transcript submitted on appeal.
The Court of Appeals finds that the issues of violations of the U.S. Constitution and the Tribal Code were not raised by the appellant. Therefore, the Court will consider only whether the decision of the Board was supported by the evidence.
The Court finds that based upon the briefs of the parties, the transcript of the hearing, and the decision of the Board, only one allegation was established by sufficient evidence. That is the allegation of a shortage of ballots. This lack of ballots resulted in there being a period of time when no one could vote.
Once an allegation has been proven or established, however, the one contesting the election must then show by sufficient evidence that the misconduct or irregularity actually changed the result of the election or prevented a fair election. Williams v. Navajo Election Commission, 5 Nav. R. 25 (1985), Johnson v. June, 4 Nav. R. 79 (1983).
*61In the present case the Board found that appellant did not show that the result of the election was changed or that the election was substantially unfair. The Board stated in its opinion that “There was no evidence presented by petitioner which specifically identified the names or numbers of registered voters that were turned away and, in fact, did not stay or come back to vote when the new ballots arrived. No evidence was presented that the poll officials did not inform voters that the absence of ballots was only temporary and that they should stay or return at 6:30 p.m., the estimated time of arrival for the new ballots. We can only assume that the trained poll officials did the correct thing by relaying the approximate time of arrival of new ballots to the voters and by allowing all those that were in line at the time the polls closed temporarily to cast their ballots.” Upon a review of the record, the Court must agree with the Board that appellant did not establish that the shortage of ballots affected the outcome of the election.
When the appeal was filed in this matter the Court granted a Stay of Execution. Upon a motion by the Board and further consideration by the Court, the Stay was dissolved, the Court stating that the proper writ would have been a restraining order to prohibit the Board from certifying the election until a final disposition of the matter.
The decision of the Board of Election Supervisors in the within matter is hereby affirmed. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502815/ | OPINION
Opinion delivered by
Tso, Acting Chief Justice.
This matter comes before the Supreme Court on two issues:
1. Whether the trial court had jurisdiction of the subject matter and jurisdiction over the Respondent;
2. If the trial court had jurisdiction, did it abuse its discretion in its Orders regarding divorce, division of property, and custody and support of the minor children.
There have been many motions filed by both parties at all stages of this proceeding. The Court will set forth only what it considers necessary for an understanding of this case.
Appellant and appellee were married in 1975 in Des Moines, Iowa. Later that year a Navajo wedding ceremony was performed. Appellant is an enrolled member of the Comanche Tribe. Appellee is an enrolled member of the Navajo Tribe. Four children were born of this marriage. The four children are enrolled members of the Comanche Tribe.
On June 6,1984, appellee filed a petition for Dissolution of Marriage in the Tuba City District Court. On June 22, 1984, the Tuba City District Court granted a Motion for Appointment of Process Server to serve appellant in Lawton, Oklahoma. Appellant received a copy of the Petition for *67Dissolution of Marriage through the process server and also by certified mail delivered June 12,1984.
On or about July 7,1984, appellant filed in the Distict Court a Special Appearance Contesting Jurisdiction. In that pleading appellant stated that she did not reside on the Navajo Reservation and that prior to moving to Oklahoma, appellant and the minor children were residents of Heber City, Utah, where they had moved on January 1,1984. Appellant made no further appearances in the trial court.
At this stage of the proceedings both parties were representing themselves. Appellant continued to represent herself throughout this case. Appellee was represented by counsel for a short period of time after the appeal was filed but for the majority of the case appellee also appeared pro se.
On July 24,1984, the trial court entered a judgment granting appellee a divorce by default. The trial court found that appellee had resided on the Navajo Reservation for at least 90 days prior to the commencing of the action. The divorce judgment awarded the appellee custody of the minor children, awarded appellant alimony, and divided up the personal property. Appellee was also awarded a house in Gallup, New Mexico.
Thereafter appellant filed an appeal. On November 19,1984, the Court allowed the appeal on the two issues set forth at the beginning of this Opinion. The Court also stayed any execution of the divorce judgment and referred the case back to the trial court for findings of fact and conclusions of law on the issue of jurisdiction.
On February 19, 1985, the Tuba City District Court had an in camera hearing and on March 27, 1985, the trial court issued Findings of Fact, Conclusions of Law, and Modified Judgment.
According to an affidavit of appellee dated February 8, 1985, he and appellant resided on the Navajo Reservation in Window Rock from June, 1983, until April, 1984. Appellee’s affidavit indicates at that time appellant moved to Gallup and appellee moved to Tuba City. Other pleadings filed by appellee indicate that appellant thereafter removed herself and the minor children to Lawton, Oklahoma. The Special Appearance Contesting Jurisdiction filed in the trial court by appellant in July, 1984, states that she and the children moved to Heber, Utah, on January 1,1984, and then to Lawton, Oklahoma.
Regardless of the date appellant left the reservation, it is clear that both parties agree that appellant and the minor children were not residing on the reservation at the time the divorce was filed on June 6,1984, and that they had not been residents of the reservation for some time prior to the filing of the petition for Dissolution of Marriage on June 6,1984.
7 N.T.C §253 sets forth the jurisdiction of the Navajo Tribal Courts. At the time the divorce was filed §253 (2), which dealt with jurisdiction in *68civil causes of action, stated that the Navajo Tribal Courts shall have original jurisdiction over “All civil actions in which the defendant is an Indian and is found within its territorial jurisdiction. All civil actions in which the defendant is a resident of Navajo Indian Country, or has caused an action to occur in Navajo Indian Country.” This is a 1980 amendment to the jurisdiction statute which deleted a separate subsection on domestic relations which had provided for trial court jurisdiction of all cases involving the domestic relations of Indians.
Under the statute as amended the Navajo Tribal Courts had subject matter jurisdiction of all civil matters within the territorial jurisdiction of the Navajo Nation.
This subject matter jurisdiction of all civil actions was contingent upon personal jurisdiction of the defendants. This would appear to foreclose jurisdiction in the instant case as appellant did not fall within any of the requirements of 7N.T.C. §253 (2).
Divorce, however, presents a situation that is somewhat dissimilar to other civil causes of action. Matters of family relationships, including marriage and divorce are areas of concern to a sovereign government. It is universally recognized that sovereign nations have the right and authority to regulate marriage and divorce among those who reside within the territorial boundaries of the sovereign.
In the United States, the federal government has recognized the rights and interests of the states in regulating marriage and divorce within state borders. These rights and interests are limited among the states by the requirements of due process and the full faith and credit clause. In order to balance the rights of the state in granting a divorce to one of its citizens with the due process rights of an out-of-state spouse, the federal and state governments have developed the theory of marriage as a status and that that status accompanies each party to the marriage.
Separation of the marital parties often results in one moving to another state. Due process questions are inherent in the attempt of either state to determine the marital status and dispose of all the incidents thereto when there is no personal jurisdiction over the out-of-state defendant. Lack of jurisdiction leaves the decree subject to being declared invalid or void. The state courts, with the blessing of the U.S. Supreme Court, follow the principle that the status of marriage which has been brought within a state’s borders by one of the spouses may be terminated by the courts of that state, even though there is no jurisdiction to determine the incidents of marriage such as care and custody of the children, division of property, spousal support, etc. In these situations, domicile of the plaintiff or petitioner within the territorial boundaries is necessary to give the court jurisdiction of the status when there is no personal jurisdiction over the defendant/ respondent.
*69In 1942, in Williams v. North Carolina, 317 U.S. 287, 87 L. Ed. 279, 63 S. Ct. 207 (1942), the U.S. Supreme Court upheld the power of state courts to determine marital status (grant a divorce) when one of the spouses is not domiciled within the state.
The existence of the power of a state to alter the marital status of its domiciliaries as distinguished from the wisdom of its exercise, is not dependent on the underlying causes of the domestic rift. As we have said, it is dependent on the relationship which domicile creates and the pervasive control which a state has over marriage and divorce within its own borders. 87 L. Ed. at 287.
Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders. The marriage relation creates problems of large social importance. Protection of offspring, property interests, and the enforcement of marital responsibilities are but a few commanding problems in the field of domestic relations with which the state must deal. Thus it is plain that each state by virtue of its command over its domiciliaries and its large interest in the institutions of marriage can alter within its own borders the marriage status of the spouse domiciled there, even though the other spouse is absent. There is no constitutional barrier if the form and nature of substituted service... meet the requirements of due process. 87 L. Ed. at 286.
Thus it is recognized that the power to regulate marriage and divorce within its borders provides a sovereign with the power to determine the marital status of one spouse even though the other spouse is without the territorial borders.
The Court must therefore look to the Navajo Tribal Code to determine the power of the Navajo Tribal Courts to grant divorces when one spouse is not domiciled in the Navajo Nation.
Prior to its amendment in 1980 the general jurisdiction statute contained the following statement of Tribal Court jurisdiction:
(2) Civil Causes of Action. All civil actions in which the defendant is an Indian and is found within its territorial jurisdiction.
(3) Domestic Relations. All cases involving the domestic relations of Indians, such as divorce or adoption matters. Residence requirements in such cases shall remain as heretofore provided in regard to the Navajo Tribal Courts of Indian Offenses.
Section 253 of Title 7 was amended February 13,1980, by Tribal Council Resolution CF-19-90. The two above subsections were combined into one which read:
(2) Civil Causes of Action. All civil actions in which the defendant is an Indian and is found within its territorial jurisdiction. All civil actions in which the defendant is a resident of Navajo Indian Country, or has caused an action to occur in Navajo Indian Country.
*70On December 4, 1985, this section was further amended to delete the first sentence. The civil jurisdiction grant now reads “All 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.”
The Tribal Council Resolution CF-19-80 which amended the civil jurisdiction in 1980 is clear that the purpose of the amendment was to extend the civil jurisdiction to include non-Indians within the Navajo Nation. In intent or in actuality, there was no limitation upon the current jurisdiction of the Tribal Courts. In No. 2 of the Whereas Clauses of Tribal Council Resolution CF-19-80, the Navajo Tribal Council specifically recognized the jurisdiction of the Navajo Tribal Courts over domestic matters. Clearly the intent is to give the Tribal Courts authority to hear all civil matters that either arise within the territorial boundaries of the Navajo Nation or .involve residents of the Navajo Nation.
Title 9 of the Navajo Tribal Code provides the Navajo Tribal regulation regarding Domestic Relations. 9 N.T.C. §401 states “The Courts of the Navajo Tribe are authorized to dissolve all marriages,. . .” §402 of Title 9 requires that the complaining party to a dissolution of marriage must have resided within the territorial jurisdiction of the Navajo Nation for 90 days prior to filing a complaint for dissolution of marriage.
§204 of Title 7 as amended on December 4,1985, states that the Navajo Tribal Courts may use the laws of the state in which the dispute lies for “Any matters not covered by the traditional customs and usages or laws or regulations of the Navajo Nation or by applicable Federal laws and regulations . . . .” Prior to the amendment it was mandatory in these situations that the Tribal Courts apply the laws of the state in which the matter in dispute lies.
Arizona recognizes that the dissolution of a marriage is an action in rem over the marriage status and that personal jurisdiction over both spouses is not required. Schilz v. Superior Court of the State of Arizona, In and for the Country of Maricopa, 695 P. 2d 1103, 144 Ariz. 65 (1985); Arizona Statutes 25-311 and 25-312.
7 N.T.C §701 (a) provides that a judgment may consist of a “declaration of rights of the moving party.”
Under the foregoing the Court holds that dissolution of marriage is an action affecting the status of marriage and that the Navajo Tribal Courts have jurisdiction to grant a dissolution of marriage when one of the spouses is domiciled within the territorial jurisdiction of the Navajo Nation if the complaining party has met the residency requirements even though the other spouse is domiciled outside the Navajo Nation.
This Court follows the principle that once the appellate court has assumed jurisdiction, the trial court may take no further action except at the direction of the appellate court. The trial court had no authority to *71make any further orders in this matter after the appeal was filed.
The trial court had no jurisdiction to determine any matters in this case other than granting the dissolution and making a disposition of the property found within its territorial jurisdiction.
Therefore it is Ordered that that portion of the decree entered on July 24,1984, which grants the divorce is affirmed. That portion of the decree which awards the appellee the household furniture in his possession and the 1977 Chevrolet pickup and camper is affirmed. All other Orders of the trial court are vacated and set aside. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502816/ | OPINION
Opinion delivered by
Austin, Associate Justice.
The Red Lake Irrigation Project, located near Navajo, New Mexico is one of the six major irrigation projects which was constructed and funded by the federal government. Pursuant to an Act of Congress dated July 12, 1960, P.L. 86-636, 74 Stat. 470, “all right, title and interest of the United States” to the Red Lake project was transferred to the Navajo Nation.
The irrigation ditch, which is the subject of this appeal, was constructed in 1959 as a subsidiary of the Red Lake project. The ditch crosses the properties of the appellants and appellees.
In 1950, appellee’s father Paul Jumbo, acquired a land use permit for a 35 acre tract of land known as plot #1. The irrigation ditch supplies water to plot #1 for agricultural purposes. In 1973, Mr. Jumbo transferred 33 acres from his permit by gift to his daughter Ruth Ellen Jumbo, the appellee.
Appellant Nesbah Yazzie acquired a land use permit for two of the 35 acres, known as plot #2, in 1962. Plot §2 is adjacent to and east of plot #1. In 1967, Ms. Yazzie applied for a one acre homesite lease on plot #2. The homesite lease was finally approved on August 11,1972. Although the irrigation ditch crosses plot #2, plot #2 has never been utilized for farming.
*76Appellant Peggy L. McClanahan also applied for a one acre homesite lease on plot #2 in 1967. Her homesite lease was finally approved in 1974. Under Navajo Tribal law, land cannot be withdrawn for two simultaneous purposes, so the District Court ruled that the Appellants’ homesite leases superceded Ms. Yazzie’s land use permit.
For over 28 years Ruth Jumbo and her family made economical and beneficial use of the water flowing through the irrigation ditch. In the process Ms. Jumbo and her family cleaned and maintained the ditch to insure proper flow consistent with the requirements of her land use permit.
A supplemental provision to Appellants’ homesite leases provide that the homesite lease “will in no way be used to control other lands outside of the leased area.” On July 7,1983, the appellants blocked the flow of water through the irrigation ditch in retaliation for two incidents of overflow onto appellants’ leased areas. Appellants’ action disrupted and prevented production on plot #1. The Jumbo family alleged and the District Court agreed that the appellees sustained $3,984.68 in damages.
On July 12, 1983, the Red Lake Land Board convened to discuss the overflow problems and to propose a solution. The Board recommended that the small culvert responsible for the flowage be replaced with a larger culvert. When the case was heard on appeal the larger culvert was in place.
The appellants first argue that the District Court erred in denying their motion to dismiss for failure to exhaust administrative remedies. The appellants also claim that they were denied a fair opportunity to be heard because they were not properly served with the appellees’ complaint prior to the Board meeting. On this claim we believe the appellants are relying upon the due process provision of the Indian Civil Rights Act, 25 U.8.C.A. §1302 (8) (1968).
Procedural due process relates to the requisite characteristics of proceedings which seek to effect a deprivation of life, liberty, or property. Annot., 98 L. ed. 855; See Shaughnessy v. United States, 345 U.S. 420 (1953), (Jackson, J., dissenting opinion). Procedural due process requires adherence to the fundamental principles of justice and fair play. Hannah v. Larche, 363 U.S. 420 (1960). It encompasses the requirements of notice, an opportunity to be heard, and to defend before a tribunal with jurisdiction to hear the case. Anderson National Bank v. Luckett, 321 U.S. 233 (1943). It necessarily follows that due process is not required where there is no interference with life, liberty or a vested property right.
The Appellants have failed to show that the Board proceeding deprived them of a vested property right. Neither have the Appellants demonstrated that the issues discussed by the Board resulted in a decision which deprived them of property.
It is obvious the board did not engage in quasi-judicial fact finding. The recommendation to replace the existing culvert did not affect the property *77interest of either party. We refuse to require compliance with procedural due process for agency discussions that do not seek to deprive a person of a property right.
The Land Board possesses the authority to settle boundary disputes, water disputes, right of way disputes etc. 3 N.T.C. §84. These types of disputes naturally involve adverse parties asserting possessory rights to the property.
We are not persuaded that blockage of the ditch is a possessory dispute that requires preliminary resort to the Land Board. The appellees are not asserting an interest in either the ditch or the water. In fact, the appellees have never used the water for any beneficial purpose. The District Court did not err in denying the motion to dismiss.
The appellants next argue that the District Court erred in finding that the appellees had acquired an easement in the irrigation ditch by prescription, necessity and implication. In support, the appellants have cited sections from Felix Cohen’s Handbook of Federal Indian Law and a section from the Federal Indian Nonintercourse Act, 25 U.S.C. §177. We believe the authorities cited by appellants properly deal with restraints on alienation of tribal lands absent strict compliance with applicable statutory requirements. Appellants’ authorities are not necessarily controlling in this case because here we are not concerned with parties attempting to assert title against the Navajo Nation.
The facts are clear that all right, title, and interest in the entire Red Lake Irrigation Project has vested in the Navajo Nation pursuant to Congressional action. P.L. 86-636. The Navajo Nation has issued revocable permits to the community to utilize the irrigation system for agricultural purposes. 3 N.T.C. § 81 etseq. It cannot be said then that any of the parties to this action has title or can acquire title to the irrigation ditch.
It is apparent the appellees have shown the requisite elements for prescription including continuous, actual, adverse, open and notorious use. Hester v. Sawyers, 41 N.M. 497, 71 P. 2d 646 (1937); Gibson v. Buice, 394 So. 2d 451 (1981). However, we hold that no prescriptive right can be acquired in property belonging to the Navajo Nation or dedicated to a community use. To allow prescription is similar to authorizing only a few individuals to utilize public property to the exclusion of others. This process would disrupt the beneficial use of that property and result in numerous disputes.
For the same reasons we hold that the appellees did not acquire an easement in the irrigation ditch by necessity and implication. This does not mean that the appellees can forego their duty to clean and maintain the irrigation ditch. That duty is required of the appellees as a condition to their holding of a land use permit: “The acceptance of this assignment requires that you do your full share of the work required to keep the ditches *78clean, maintain the principal water distribution system, and control waste water.” Land Use Permit, Section Bl.
The facts are uncontroverted that the appellees have made economical and beneficial use of the water from the irrigation ditch for over 28 years. Their right to use the water is also apparent on their land use permit. We hold that the appellees have acquired an interest in the water and any intentional obstruction upstream is compensable to the appellees.
This case will be remanded to the District Court to determine the nature and extent of the appellees’ interest in the water. In addition, the appellees will recover, upon proper proof, damages for all injuries which are the direct, natural and proximate result of the appellants’ conduct. The appellants can introduce evidence to minimize damages. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502817/ | OPINION
Opinion delivered by
Austin, Associate Justice.
Ben Wauneka Sr., administrator of the estate, appeals the denial of his claim against Dennis Williams for unauthorized use of estate farmland. Ben Wauneka Sr., as an heir, also appeals the judgment which distributed the farmland to the heirs in equal parcels.
Charley Nez Wauneka Sr., died intestate on January 10, 1979. There is no surviving spouse. In his Final Report and Proposed Distribution, Ben Wauneka Sr., the eldest son, proposed that the entire farmland consisting of 10.8 acres be awarded to him. Objections to the proposed distribution of the farmland were filed by the opposing heirs (Eunice Wauneka, Lucille W. Hunt, Charley Wauneka Jr.) and by Dennis Williams. Dennis Williams is not an heir. Opposing heirs are all children of the decedent.
Both objections alleged that Dennis Williams had purchased the farmland from the decedent. In an earlier de novo decision the Court of Appeals had rejected the purchase argument and ruled that the farmland was estate property. Wauneka Sr. v. Williams, A-CV-26-81. Opposing heirs subsequently amended their objection to request equal distribution of the farmland.
In Wauneka Sr. the court entered the following judgments:
*806. Dennis Williams shall be entitled to cut the alfalfa growing on the Land in question as of the date of the trial do [sic] novo and to bale and take such hay from the Land.
7. Other than cutting and taking the alfalfa growing on the Land in September, 1983, Dennis Williams shall make no other or further use of the Land in question.
The District Court interpreted these judgments as recognizing Dennis Williams’s use and occupancy of the farmland and denied the administrator’s claim for unauthorized use. WR- CV-553-83. Order entered September 24,1984.
We now reverse the denial of the administrator’s claim. The administrator is the proper representative of the estate and where the estate’s interest is involved he may sue and be sued. In re Balke’s Estate, 68 Ariz. 373, 206 P. 2d 732 (1949); Estate of McCabe, 11 Ariz. App. 555, 466 P. 2d 774 (1970); Estate of Balcomb, 114 Ariz. 519, 562 P. 2d 399 (1977). The administrator’s primary duty is marshalling the assets of the estate. See Estate of Tamer, 20 Ariz. 228, 197 P. 643 (1919); Estate of Engbrock, 90 N.M. 492, 565 P. 2d 662 (1977).
Ben Wauneka Sr.’s duty as administrator requires that he maintain all necessary actions to recover property of the estate. See Bodine v. Stinson, 85 Nev. 657, 461 P. 2d 868 (1969). This includes suits against unauthorized users of the estate property. In Wauneka Sr. it has been determined that Dennis Williams was without proper authority to use and occupy the farmland except for the 1983 season.
The District Court erroneously concluded that judgments 6 and 7, in Wauneka Sr., precluded all of the administrator’s claim. We now clarify Wauneka Sr. to hold that Dennis Williams’s use and occupancy of the farmland was legitimate for only the 1983 alfalfa season. Dennis Williams’s other uses were not recognized in Wauneka Sr. and they are properly included in the administrator’s claim.
It is obvious the Court in Wauneka Sr. justified its ruling by its desire to prevent crop waste for the 1983 season. That court, sitting de novo, possessed the evidence to justify its ruling so we will not disturb its wisdom, absent clear abuse of discretion.
We are without the benefit of Dennis Williams’s brief and arguments opposing the administrator’s claim. Dennis Williams failed to oppose the appeal despite notice to his counsel. Opposing heirs touched on points of Dennis Williams’s case but we believe opposing heirs lack standing to assert Dennis Williams’s defenses. See generally Halona v. MacDonald, 1 Nav. R. 189, 197, 198 (1978), (quoting Flast v. Cohen, 392 U.S. 83 [1968]). We presume Dennis Williams does not oppose the administrator’s contentions on appeal. Cf. Estate of Goldtooth, 3 Nav. R. 48 (1981), (intervenor did not appear in person or through counsel on appeal and court grants opposing party relief).
*81Ben Wauneka Sr., as an heir, first contends that the District Court erred in distributing 10.8 acres of farmland to the heirs in equal parcels. Ben Wauneka Sr. argues that he should be awarded the entire farmland under the doctrine of equitable distribution. Alternatively, Ben Wauneka Sr. contends that the farmland as distributed by the District Court is unequal on its face. He argues that the parcel awarded to him is undeveloped, contains the roughest area, and it does not have the grazing capacity nor the production potential as the other parcels. We hold for equitable distribution therefore we do not reach the merits on the second claim.
In Wauneka Sr. v. Williams, A-CV-26-81, the Court of Appeals sitting de novo found that none of the parties, including the decedent, had a valid permit granting them the right to use and occupy the farmland. However, the Court found that the decedent held the use rights to the land through a lifetime of continuous and exclusive use.
The land is substantially improved. It is fenced and at least 7.6 acres has been continuously used for growing alfalfa since 1969. The other 3.2 acres, denoted “not in use,” is used primarily for pasturing cattle. A small creek, which we presume is used for irrigation, crosses the land lengthwise. The land was surveyed and plotted on a map by the Bureau of Indian Affairs in 1979. It is unclear .why a permit was not issued.
The Courts of the Navajo Nation have the authority to probate the unrestricted property of a decedent. 7 N.T.C. § 253 (c). The question arises as to whether the property in this case falls into the category of unrestricted property. Restricted property, we believe, includes reservation land for which the Navajo Nation holds title for the common use and equal benefit of all tribal members. See United States v. Jim, 409 U.S. 80 (1972); Mashpee Tribe v. Watt, 542 F. Supp. 797 (D. Mass. 1982), aff'd, 707 F. 2d 23 (1st Cir. 1983), cert., denied, 104 S. Ct. 555 (1983). Unrestricted property includes property owned by individuals, and for which the Navajo Nation does not hold title for all tribal members.
Land use on the Navajo Reservation is unique and unlike private ownership of land off the reservation. While individual tribal members do not own land similar to off reservation, there exists a possessory use interest in land which we recognize as customary usage. An individual normally confines his use and occupancy of land to an area traditionally inhabited by his ancestors. This is the customary use area concept.
The Navajo Tribal Council has recognized that customary usage is a property right for which compensation is available if diminished by the sovereign. 16 N.T.C. § 1402, CJA-18-60. In Dennison v. Tucson Gas and Electric Company, 1 Nav. R. 95 (1974), the Court recognized customary usage as a property right protected by the Navajo Bill of Rights and the Indian Civil Rights Act, 25 U.S.C. §1301 etseq. (1968). Customary usage is therefore viewed as a property interest by the Navajo Nation.
*82Wauneka Sr. v. Williams, A-CV-26-81, found that the decedent exercised continuous and exclusive possessory use of the land during his lifetime. The decedent’s use was never disputed by either the sovereign, the Bureau of Indian Affairs, or other land users from the immediate area. It is clear then that the decedent possessed a recognized property interest in the farmland. The farmland is fenced and readily ascertainable. We hold that this customary use area and the improvements incident can pass as property under our laws of succession.
Under our rules Navajo custom, if proven, controls the distribution of intestate property. Custom takes priority even if it conflicts with our rules of probate. Navajo Rules of Probate Procedure, Rule 10; See Johnson v. Johnson, 3 Nav. R. 9 (1980); Apache v. Republic National Life Insurance, 3 Nav. R. 250 (W.R.D.C. 1982).
Ben Wauneka Sr. argues that he proved custom in the Blue Canyon area at the trial de novo through the undisputed testimony of a well known medicineman. In his brief, Ben Wauneka Sr. states: “It is the custom in this area of the Navajo Nation for the eldest son to inherit land.” Brief for Appellant at 6. However, a brief statement without further elaboration is not overly persuasive. We consider this custom as only one factor in our decision.
Customary law has been frequently used by our courts to determine allocation of property. The customary trust is an excellent device to use in property distribution cases involving permits and land. The customary trust is a unique Navajo innovation which requires the appointment of a trustee to hold the productive property for the benefit of the family unit. See Matter of the Trust of Benally, 1 Nav. R. 10 (1969); Johnson v. Johnson, 3 Nav. R. 9 (1980).
The customary trust is most efficient if there is cooperation and participation by all concerned. Those elements are unfortunately lacking in this case. The dissension among the heirs is counter-productive to any concept of a customary trust. The best interests of the heirs will not be served by a trust which would only be an impetus for further family discord.
The Navajo Nation has long disapproved of fragmenting agricultural and grazing lands. While our statutes specifically address permitted lands, we believe the policy is equally applicable here. At 3 N.T.C. §217 we are reminded that:
(a) Upon the death of an assignee his land use permit shall be transferred to his most logical heir as determined by the Tribal Court. The Court shall make every effort to assign the land as one unit or combine it with another. The Court should make every effort to keep the land assignment in one tract and not subdivide it.
The statutes governing inheritance of land associated with major irrigation projects and small irrigation projects contain the same language. 3 N.T.C. § 87; 3 N.T.C. § 154.
*83We adhere to the land policy of the Navajo Nation. We disfavor dividing up small parcels of land. The practical effect of progressive fragmentation of land results in possession of even smaller parcels by an astronomical number of heirs. The probation of allotments is a prime example of problems with fragmentation we can do without on the Navajo Reservation. (For an excellent discussion of the allotment problem, see Williams, Too Little land, Too Many Heirs — The Indian Heirship Problem, 46 Wash. L. Rev. 709 [1971].)
Splitting 10.8 acres of customary use land in this case results in each heir possessing a little over two and one half acres. Inevitably, progressive fragmentation decreases the usefulness of the land and the benefits derived from the land diminishes. An increase of squabbles over land use is apparent as customary users attempt to expand their use beyond their few acres. Our compliance with the Navajo land policy is made with the knowledge that opposing heirs have been awarded other equitable portions of the estate. Perhaps in the future, there will be situations which mandate contrary decisions, but we will not dwell on that here.
Every acre of land on the reservation not reserved for a special purpose is a part of someone’s customary use area. Navajo history teaches us that land and livestock nourished our development as a nation. Today there are Navajo people who have devoted their entire lives to etching a living from the land. If left undisturbed these independent individuals will continue to sustain themselves from the land despite other people’s need for a wage income.
It is undisputed that of all the heirs Ben Wauneka Sr. holds the best position to make proper and beneficial use of the land. Ben Wauneka Sr. is unemployed, does not have use rights to any other land, and he makes his living solely from the land in question. Ben Wauneka Sr. possesses the necessary implements to operate and maintain the farmland. Ben Wauneka Sr. has lived near the farmland all his life and he has worked the land in the past. Ben Wauneka Sr. needs the land to sustain his livelihood. We cannot say the same for the other heirs.
The opposing heirs have all expressed their intent to dispose of their parcels if awarded. Obviously the opposing heirs have no interest in farming the land. Each of the opposing heirs has been generously awarded other property of the estate. The opposing heirs are also either employed, live away from the land, or they do not possess the equipment to operate and maintain the land. The opposing heirs cannot complain that they were not well provided for.
Our decision to award Ben Wauneka Sr. this portion of the estate property is not inconsistent with our laws on property distribution. Joe v. Joe, 1 Nav. R. 320 (1978), dealt with the division of religious paraphernalia in a divorce action. There the Court allowed both parties to be awarded sufficient paraphernalia to perform ceremonies. Both parties had the capability *84to put the items to proper use. See also Johnson v. Johnson, 3 Nav. R. 9 (1980); Compare Shorty v. Shorty, 3 Nav. R. 151 (1982). We believe Ben Wauneka Sr. is the most suitable heir who can put the land to proper and beneficial use, therefore he is awarded the farmland.
The case will be remanded to the District Court for a trial on the administrator’s claim against Dennis Williams. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502821/ | OPINION
Opinion delivered by
Austin, Associate Justice.
Petitioner Chuska Energy Company brought this action in the Supreme Court seeking to enjoin the Navajo Tax Commission and its Conferee from enforcing subpoenas duces tecum, issued by the Conferee to officers, agents, and employees of the Petitioner. Chuska contends that the Conferee “does not have authority to issue subpoenas” and that the terms of the subpoenas “exceed the scope of examination of pertinent records” as set forth by law.1 PETITION FOR INJUNCTIVE RELIEF, allegations numbered 10 and 12. We scheduled the case for oral arguments to decide: (1) when the Supreme Court can issue an injunction; and (2) whether an injunction shall be issued in this case.
Chuska Energy Company is a New Mexico Corporation engaged in business as an oil and gas operator under an agreement with the Navajo Nation. The Navajo Tax Commission operates under the Executive *99Branch of the Navajo Nation Government. On August 1,1985, the Commission notified Chuska that it had been assessed with a possessory interest tax for the year 1985. Chuska disputed the assessment and requested administrative review. The review had progressed to Formal Conference with Lawrence White presiding as Conferee when the instant action was filed.2
On May 14, 1986 and on June 16, 1986, Conferee White issued suppoenas duces tecum to Joe F. Thomas, Glenda J. Bass, and Robert L. Berge; all officers, agents, and employees of Chuska. On June 30, 1986, Chuska filed a motion to quash the subpoenas with the Commission. Chuska’s motion alleged that the subpoenaed documents were irrelevant and immaterial to the assessment and that the disclosure of the documents would be detrimental to Petitioner’s business. PETITIONER’S MOTION TO QUASH dated June 30, 1986. On July 1, 1986, Chuska’s Motion to Quash was denied by Conferee White.3 The following day Chuska filed this action seeking injunctive relief.
I. Background
The Supreme Court is vested with limited jurisdiction. This jurisdictional limitation compels an initial examination of the sources of this Court’s power to issue injunctions, prior to considering Chuska’s petition for injunction relief. The Supreme Court’s appellate jurisdiction is established at 7 N.T.C. § 302, which gives the Court power to review final judgments and final orders of the District Courts and certain administrative agencies.4 The Supreme Court’s original jurisdiction stems from 7 N.T.C. § 303, which gives the Court supervisory authority over lower courts through extraordinary writs. In the Matter of Contempt of: Arnold Sells, 5 Nav. R. 37 (1985); McCabe v. The Honorable Robert B. Walters, 5 Nav. R. 43 (1985); see also Yellowhorse Inc. v. The Honorable Robert Yazzie, 5 Nav. R. 85 (1985). 7 N.T.C. §303 further authorizes the Supreme Court to *100issue any writs or orders necessary and proper to the complete exercise of its jurisdiction. This power is available, pursuant to the Court’s appellate jurisdiction, to preserve or protect the Supreme Court’s jurisdiction. See Nez v. Bradley, 3 Nav. R. 126 (1982); see also Federal Trade Commission v. Dean Foods Company, et al., 384 U.S. 597, 86 S. Ct. 1738 (1966). The Supreme Court’s jurisdiction to issue an injunction is derived from two sources within 7 N.T.C. § 303; the necessary and proper clause and through its powers to supervise the lower courts.
II. Original Jurisdiction
A petitioner seeking an injunction from the Supreme Court must proceed under 7 N.T.C. § 303. This section grants the Supreme Court both appellate and original jurisdiction. An evaluation of the proceeding and the purpose for the injunction will dictate the nature of jurisdiction invoked. Original jurisdiction is founded at that part of 7 N.T.C. § 303 which reads:
The Supreme Court shall have the power to issue any writs or orders... to prevent or remedy any act of any Court which is beyond such Court’s jurisdiction, or to cause a Court to act where such Court unlawfully fails or refuses to act within its jurisdiction.
Petitions requesting an exercise of the Supreme Court’s supervisory authority over lower courts have been initiated pursuant to this part. See In the Matter of Contempt of: Arnold Sells, 5 Nav. R. 37 (1985); McCabe v. The Honorable Robert B. Walters, 5 Nav. R. 43 (1985). Courts, as used in Section 303, pertain to the District Courts and the Children’s Courts of the Navajo Nation.5 The appropriate relief under 7 N.T.C. §303 includes the writs of mandamus, prohibition, superintending control, and an injunction. See Yellowhorse Inc. v. The Honorable Robert Yazzie, 5 Nav. R. 85 (1985), (application for writs of mandamus and prohibition denied). The statute mandates that any writ or order granted by the Supreme Court pursuant to its original jurisdiction shall be directed at a court. 7 N.T.C. § 303. Consequently, an original petition seeking an injunction must allege the Supreme Court’s original jurisdiction under Section 303 and identify the court to be enjoined. Proof of the factors which necessitate restraint is also required.
We now examine Chuska’s petition seeking injunctive relief. The petition alleges that the Supreme Court has jurisdiction to grant an injunction *101pursuant to 24 N.T.C. § 234 (b) of the Tax Code. PETITION FOR INJUNCTIVE RELIEF, allegation numbered 18. We disagree. 24 N.T.C. § 234 (b) does not empower the Supreme Court with original jurisdiction to issue injunctions. Neither can the Supreme Court properly use 24 N.T.C. § 234 (b) to invoke its supervisory authority over lower courts. An appeal to the Supreme Court of a final Tax Commission decision is the only remedy available under 24 N.T.C. § 234 (b).
Nonetheless Chuska argued during oral arguments that its request for an injunction is proper under 7 N.T.C. § 303. The Supreme Court can enjoin, pursuant to its original jurisdiction established at Section 303, but that power is conditional upon Chuska showing that Formal Conference is a court. See 7 N.T.C. § 303. The evidence does not justify such reasoning. Formal Conference lacks the basic characteristics of a court. It lacks an adversarial setting and Conferee White is not authorized to accept only sworn testimony, apply the rules of civil procedure, or even rule on the admissibility of evidence. A formal record of the Formal Conference is not required to be maintained. See Regulations of the Navajo Tax Commission, Rules and Procedures for Administrative Appeals, § 1.820 et seq. (Compare with Appeal Before Hearing Officer, § 1.830 et seq.). To hold that the Supreme Court can supervise Conferee White and the proceedings in Formal Conference would amount to a strained interpretation of 7 N.T.C. § 303.
III. Appellate Jurisdiction
We have just concluded that Chuska has failed to present an action under the Supreme Court’s original jurisdiction established at 7 N.T.C. § 303. A subsequent inquiry is whether Chuska has a remedy of injunction available pursuant to the “necessary and proper clause” of 7 N.T.C. § 303. The language reads thus: “The Supreme Court shall have the power to issue any writs or orders necessary and proper to the complete exercise of its jurisdiction.” (Following provisions omitted.)
As stated earlier, we believe that the necessary and proper clause performs through the Supreme Court’s appellate jurisdiction. Any restraint ordered thereunder would serve to preserve or protect the Supreme Court’s appellate jurisdiction. A petition for relief under the necessary and proper clause can be initiated by an interested party or on the Supreme Court’s own prerogative. An injunction granted thereunder would enjoin a party from impeding the appellate jurisdiction of the Supreme Court. Situations inciting action under the necessary and proper clause include cases where the Supreme Court has lawfully acquired jurisdiction but efforts are being pursued to defeat jurisdiction; where the status quo must be maintained *102pending review of an action on appeal; and where the Supreme Court has potential appellate jurisdiction but there is interference with that jurisdiction which prevents perfection of the appeal. The test is to show a need to preserve and protect the Supreme Court’s appellate jurisdiction.
Chuska’s petition does not allege a need to preserve or protect the Supreme Court’s appellate jurisdiction. Chuska has not shown that either Conferee White or the Commission is hampering the appellate process concerning the assessment issue. Neither has it been shown that Conferee White’s order will deny Chuska a right to appeal. In every respect, Chuska has not satisfied the test which would warrant an injunction to preserve or protect the Supreme Court’s appellate jurisdiction.
The final inquiry relates to another aspect of the Supreme Court’s appellate jurisdiction. The Supreme Court’s appellate jurisdiction is sometimes reiterated in statutes governing administrative agencies. Here 24 N.T.C. § 234 (b), as amended in 1984, illustrates that point. The relevant part of Section 234 (b) states: “Appeals from final actions of the [Tax] Commission. . .shall be made only to the [Supreme Court] of the Navajo Nation. . . .” This part is consistent with 7 N.T.C. § 302 of the Judicial Reform Act of 1985, which grants the Supreme Court appellate jurisdiction “to hear appeals from final judgments and other final orders of the District Courts of the Navajo Nation and such other final administrative orders as provided by law.6” (Emphasis added.)
The burden is imposed upon the Petitioner to establish that the Supreme Court has jurisdiction to review a final decision pursuant to either 7 N.T.C. § 302 or 24 N.T.C. § 234 (b). As previously stated, Chuska brought its petition for injunctive relief pursuant to 24 N.T.C. § 234 (b), of the tax laws governing possessory interest tax. In contrast to 7 N.T.C. § 303, neither 24 N.T.C. § 234 (b) nor 7 N.T.C. § 302 grants the Supreme Court authority to issue an injunction. 24 N.T.C. § 234 (b) permits direct appeals of final Tax Commission decisions to the Supreme Court. Assuming that Chuska’s petition is an appeal, then the question is whether the Conferee’s denial of Chuska’s motion to quash the subpoenas is a final order of the Commission which is appealable to the Supreme Court.
The Supreme Court is unavailable for review until all the substantial rights of the parties have been determined in the lower tribunal, whether that tribunal be District Court or administrative agency. The case must be fully adjudicated on the merits, and the entry of the final decision must preclude further proceedings in the lower tribunal. This was the Tribal Council’s intent upon empowering the Supreme Court with jurisdiction to hear “final” decisions pursuant to 7 N.T.C. § 302.
*103An examination of Chuska’s petition reveals its non-compliance with the “final” decision requirement of either 7 N.T.C. § 302 or 24 N.T.C. § 234 (b). Chuska’s rights and the merits of the assessment issue remain undetermined at this point. The merits of the case have progressed only to the second level of the tax administrative review process with rights of appeal to the Hearing Officer and the Tax Commission intact. Conferee White’s order of denial of Chuska’s motion to quash cannot be interpreted as disposing of the merits of the assessment issue thereby the case is not ripe for appeal. Neither is the issuance of an administrative subpoena in the midst of a valid administrative proceeding an appealable action. Chuska’s petition, alleging jurisdiction pursuant to 24 N.T.C. § 234 (b), therefore is an interlocutory appeal and Navajo Law precludes interlocutory appeals. See Orders in Thompson v. General Electric Credit Corporation, 1 Nav. R. 234 (1977); and Todachine v. Navajo Tribe, et al., 1 Nav. R. 245 (1977). The Tax Commission has not entered a final decision therefore Chuska’s appeal is premature. We hold that Chuska has failed to establish this Court’s jurisdiction to entertain its petition pursuant to either 24 N.T.C. § 234 (b) or 7 N.T.C. § 302.
IV. Conclusion
The Supreme Court has the power to enjoin under its original jurisdiction and under the necessary and proper clause. 7 N.T.C. § 303. Chuska’s petition seeking injunctive relief falls outside the jurisdictional perimeters of 7 N.T.C. § 303. Therefore an injunction cannot be granted by the Supreme Court in this case.
Chuska contended at oral arguments that if the Supreme Court denied its petition, it will be left without a forum to vindicate its rights. We disagree. We believe the District Court is available to Chuska for declaratory and injunctive relief. Chuska’s request for an injunction from the Supreme Court is therefore denied.
Chief Justice Tso and Justice Bluehouse concur.
. Chuska also argues that the Commission lacks regulations for discovery or production of records and as to who is responsible for the cost of production of records. These concerns are not addressed in this Opinion.
. There are four levels of review in the administrative tax appeal process: Informal Conference; Formal Conference; Hearing Officer; and the Navajo Tax Commission. The final order of the Tax Commission is appealable to the Navajo Nation Supreme Court. Title 24, Navajo Tribal Code.
. Conferee White denied the motion stating: “Neither the Statutes nor the Tax Administration Regulations provide for an action to quash the summons and subpoena issued pursuant to § 239, 339 or 439 and Regs. §§ 1.135 and 1.139. CECO’s Motion is without statutory or regulatory authority. Finding no authority to bring such an action, the Motion to Quash must be denied as premature for lack of jurisdiction.” ORDER DENYING MOTION TO QUASH, July 1,1986, page. 2.
. The Judicial Reform Act of 1985 defines District Courts as including the Children’s Courts of the Navajo Nation. 7 N.T.C. § 103.
. This Opinion will not decide whether courts as used in 7 N.T.C. §303 includes quasjudicial forums within administrative agencies. Here that forum would be the Hearing Officer.
. The Court will leave the interpretation of “and such other final administrative orders as provided by law” for a future case. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502822/ | OPINION
Opinion delivered by
Tso, Chief Justice and Yazzie, Associate Justice.
I. Statement of Facts
This case involves a divorce action between appellant-husband and appellee-wife. The District Court of Chinle, Arizona, awarded the wife, who is 53 years old, in ill health and unemployed, $500.00 monthly alimony and a substantial portion of the marital property, including a grazing permit for 127 sheep units, 70 head of cattle, 15 horses and 500 head of sheep. The court awarded the husband a 1984 GMC pickup truck and a grazing permit consisting of 40 sheep units. The husband is employed full-time, earning a yearly income of $38,000. The parties were married to each other 28 years. They have six (6) children, four of whom are adults.
II. Issues
The marital property and alimony awarded to the wife raises these issues:
1. Did the District Court abuse its discretion in awarding $500.00 a *105month alimony to the wife who received a substantial portion of the marital property, including income-bearing property?
2. Did the District Court abuse its discretion in awarding alimony to the wife for an unlimited time period?
Tribal Courts are empowered to dissolve marital relationships by granting divorces. This involves a winding up of matters between the parties such as dividing the property, making provisions for paying debts, deciding matters pertaining to the children, and insuring that the parties are able to care for themselves. In doing so, the courts must use objective standards or guidelines that will be applied equally to the circumstances of the divorcing parties.
The case at bar clearly shows that the Supreme Court must establish guidelines to assist the District Courts in determining whether to award alimony. This Court cannot review an alimony award for abuse of discretion until guidelines for awarding alimony are in place.
The power of the Supreme Court to fashion guidelines for the District Courts is based upon the following general principles:
1. Power to review for abuse of discretion;
2. The need for uniform and impartial laws throughout the Navajo Nation; and
3. The superintending authority of the Supreme Court.
Therefore, before we can review for abuse of discretion by the lower court, this Court must set forth guidelines on the issues.
Issue I: Did the District Court abuse its discretion in awarding $500.00 a month alimony to the wife who received a substantial portion of the marital property, including income-bearing property?
Alimony is a sustenance or support of the wife by her divorced husband. In the Anglo world, this stems from the common-law rights of the wife to support by her husband. If allowed in a divorce action, alimony is awarded either in terms of (1) money payment on a periodic or permanent basis, or (2) a lump sum of money of final property settlement on a one time basis. Under state law, alimony is generally allowed by statute.
The Navajo Nation has no standard by statute for determining alimony. This Court, however, is not entirely without alimony guidelines. Charley v. Charley, 3 Nav. R. 30 (1980). This Court first resolved the question of whether the courts of the Navajo Nation are empowered to award alimony in Johnson v. Johnson, 3 Nav. R. 9 (1980). After deciding that nothing in Navajo tradition or custom prohibits a Navajo court to award alimony, the court applied the New Mexico law under 7 N.T.C. § 204, and allowed an alimony award in a divorce action. Id., p. 11.
*106There are no fixed rules by which the Court can determine the amount of alimony. This Court in Charley held that alimony must be decided on a case-by-case basis in light of what is “fair and reasonable.” The guidelines it established which must be considered in light of the “fair and reasonable” standard include:
1. The needs of the spouse seeking alimony;
2. Age of the spouse requesting alimony;
3. Means of support;
4. The earning capacity, including future earnings of the parties;
5. The length of marriage;
6. The amount of property (with values) owned by the parties.
This Court must now set additional guidelines which the District Courts of the Navajo Nation must also consider in a fair and reasonable manner when awarding alimony. The guidelines include but are not limited to:
1. The reasonable market value of marital property apportioned to the spouse seeking alimony and the ability of such spouse to meet his or her needs independently;
2. The economic circumstances of each party, including:
a. Health;
b. Station (work or social position);
c. Vocational skills or need for retraining or to acquire new skills;
d. Employability;
e. Opportunities to acquire capital assets.
3. The liabilities of each of the parties;
4. The contribution of a spouse as a homemaker or the contribution of each spouse to the family;
5. Who will have the children, and their needs;
6. Considerations of Navajo traditional and customary Navajo law, where applicable;
7. All other relevant facts.
(See Shorty v. Shorty, 3 Nav. R. 151 [1982].)
In applying the standard in Charley, supra, the wife in a divorce action was denied alimony because she was only married for two years. Since the wife was also young, healthy, and able to work, she failed to meet the standard. On the other hand, the facts in Johnson reached a different result. The parties in that case were divorced after having been married for 28 years. The wife was 52 years of age and unemployed. She was awarded support on the rationale that alimony was to compensate the female spouse *107who was unable to earn for herself the same level of material comforts which she enjoyed during converture. Johnson at p. 10.
The factors considered by Charley and Johnson in determining alimony do apply to the instant case. The wife, now fifty-three (53) years old, is in ill health, unemployed, and having been married to her husband for 28 years definitely meets the standards of Charley, supra. Likewise, the facts here are identical to the situation of the wife who received alimony in Johnson, supra. However, applying the guidelines as a whole to the case at hand, it is difficult to say whether under Charley and Johnson above the wife is entitled to support from her husband.
The Court finds that the division of property was done in a “fair and just” manner consistent with 9 N.T.C. § 404. See Shorty, supra. Among the alimony guidelines of this Court, one important factor is the marital property apportioned to the spouse seeking alimony, as well as the value of the property. In the instant case, the wife was awarded certain income producing property which includes 500 head of sheep and 70 head of cattle. Given this distribution, we are unable to determine from the record what the wife’s income is likely to be. There are no facts in the record to suggest what annual income will be derived. The amount of marital property apportioned to a spouse has a direct impact on the alimony awarded to that spouse. This issue must be considered where distribution of marital assets greatly enhance the ability of the spouse seeking maintenance to meet his or her needs independently. Here, the wife certainly will derive income from the 500 head of sheep and 70 head of cattle. No doubt, sheep produce income from the sale of lambs and wool. Cattle, like sheep, reproduce in numbers which guarantee continuous income for Navajo livestock owners. We are unable to determine from the record how much income will be derived from these livestock. Facts are needed to determine this question. Once a court knows how much income will be generated by the income producing property then the court can determine how much alimony, if any, should be awarded. Until more facts are gathered to determine the value and income to be derived from the property apportioned to the wife, we are not in position to decide whether the District Court abused its discretion on this particular issue.
Before addressing the next issue we will review the Charley decision that the law of the State where the spouse and children reside will apply to determine the standard for alimony. We reverse the Charley decision on this particular point. State laws do not control domestic relations within our jurisdiction. Williams v. Lee, 358 U.S. 217 (1959). State laws are only used by the Courts of the Navajo Nation to decide legal issues of first impression. If the Courts of the Navajo Nation apply State law in Tribal Courts too often, then our courts would be only mirror images of Anglo courts. *108The counsels of record in this case must not ignore Navajo case laws when addressing legal issues. The soul of this Court is to apply Navajo Tribal law, especially where our custom and tradition are appropriate. We need to promote uniformity, consistency and predictability in developing Navajo law. To apply State law to determine alimony would only create confusion and even encourage forum shopping. For example, if the parties live in Arizona, they may choose to file their action in New Mexico merely because they believe the Navajo courts in that state provide “better” relief.
In fairness to the court in Charley it should be pointed out that at the time Charley was decided the Navajo Courts were required to apply the law of the state in which the court was sitting if there was no applicable Federal or Navajo law. In the Judicial Reform Act of 1985, this requirement was abolished. 7 N.T.C. § 204 now makes application of state law discretionary with the courts. This allows the Navajo Courts to adopt and develop law that best meets the needs of the Navajo people. It also prevents various courts within the Navajo system from being required to apply different law.
Issue II. Did the District Court abuse its discretion in awarding alimony to the wife for an unlimited time period?
The divorce decree requires the husband to pay alimony to the wife in the amount of $500.00 per month “until further order of this court.” Once a court has determined that alimony in a particular case is necessary and appropriate, the court may order it paid until the court makes other orders modifying the amount or stopping payments all together. Often the trial court is unable to see into the future and know the exact date on which alimony will no longer be needed. An award “until further order of court” allows either party to file a motion to modify the award if circumstances change following the decree. Certain alimony awards are also limited by the death or remarriage of the receiving spouse.
This Court believes the appellant may have thought the words “permanent alimony” meant the award could never be changed. This phrase is frequently used in state courts to distinguish an alimony award in a final decree from the temporary alimony the court may allow while the case is pending. Whether the alimony is labeled permanent or indefinite, it may be subject to future modification by the court.
This action is hereby remanded to the district court to hold an evidentiary hearing and make findings of fact to determine (1) the income to be derived from the income producing property and (2) the amount of alimony awarded in the case at hand. The award of alimony should be awarded consistent with the guidelines set forth in this Opinion. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502823/ | OPINION
Opinion delivered by
Austin, Associate Justice.
This case concerns the Supreme Court’s jurisdiction to review an appeal from a final decision of an Appeal Authority acting pursuant to the Navajo Nation Personnel Policies and Procedures. We believe that the disposition of the case hinges upon the interpretation of 7 N.T.C. § 302, as it is codified in the Judicial Reform Act of 1985.
The pertinent facts show that Appellee Felix Spencer was fired from his job with the Navajo Nation Division of Resources on March 30, 1984. Spencer requested a grievance hearing pursuant to the Navajo Nation Personnel Policies and Procedures, which is appended to Title Two of the Navajo Tribal Code. The hearing was held before the Tribal Grievance Committee on July 16,1985. The Committee decided in favor of Spencer. The Appellant Division of Resources appealed the Committee’s decision to the Chairman of the Navajo Nation. The Chairman’s Office appointed a member of the Navajo Tribal Council’s Advisory Committee as Appeal Authority to hear the appeal. After hearing the appeal, the Appeal Authority decided in Spencer’s favor. Spencer then requested clarification of the Appeal Authority’s decision which led to another hearing before a second Appeal Authority. On April 28, 1986, the second Appeal Authority also *110decided in Spencer’s favor. On May 28, 1986, the Division of Resources filed an appeal alleging that the Appeal Authority exceeded his authority as set forth in the Navajo Nation Personnel Policies and Procedures. Spencer filed a motion to dismiss the appeal alleging that the Supreme Court lacked jurisdiction to hear the appeal. We set the case for oral arguments to decide whether the Supreme Court has jurisdiction to review a final decision of the Appeal Authority.
The Navajo Tribal Council created the Navajo Nation Supreme Court and it directed the Supreme Court to hear appeals and render decisions based upon the law, equity, and tradition. Navajo Tribal Council Resolution, CD-94-85. The Tribal Council guaranteed fulfillment of its intention by basing the Supreme Court’s jurisdiction on the same statutory provisions that it used to create the High Court. Consequently, the Supreme Court can acquire and exercise jurisdiction only in the manner prescribed by the Tribal Council in Title Seven of the Navajo Tribal Code.
The Tribal Council has authorized the Supreme Court to accept and review only cases which have satisified appellate requirements, and those which petition for extraordinary writs. This restriction has enabled the Tribal Council to create a Supreme Court with limited jurisdiction. Chuska Energy Company v. The Navajo Tax Commission, et al., 5 Nav. R. 98 (1986). In comparison, the District Courts of the Navajo Nation are courts of general jurisdiction.
The Supreme Court’s acquisition of jurisdiction and the limitations under which that jurisdiction is exercised is explained in Nez v. Bradley, 3 Nav. R. 126 (1982). There Chief Justice McCabe said:
Appeal courts, unlike trial or district courts, are limited in the kinds of cases they hear. They usually get their authority to act from a constitution or statute, and they are limited to the powers expressly set forth in those laws. . . .Within the Navajo Nation, the jurisdiction of the Court of Appeals is fixed, limited and expanded only through the action of the Navajo Tribal Council.
3 Nav. R. at 129. These principles will guide our examination of the statutes in the Judicial Reform Act of 1985 as they relate to this case.
The Division of Resources filed its notice of appeal alleging Supreme Court jurisdiction under 7 N.T.C. § 801 (a) of the Judicial Reform Act of 1985. We disagree with the Appellant. 7 N.T.C. § 801 (a) is not the Supreme Court’s jurisdictional statute. 7 N.T.C. § 801 (a) establishes the time limits and the requirements for filing a notice of appeal. Instead, the basis of the Supreme Court’s appellate jurisdiction is located at 7 N.T.C. § 302. Chuska Energy Company v. The Navajo Tax Commission, et al., 5 Nav. R. 98 (1986). Jurisdiction is granted in the following terms:
Section 302. Jurisdiction — Generally
The Supreme Court shall have jurisdiction to hear appeals from final judgments *111and other final orders of the District Courts of the Navajo Nation and such other final administrative orders as provided by law. The Supreme Court shall be the Court of final resort.
The first part of section 302 allows an appeal of a final judgment of a District Court provided the appeal conforms to 7 N.T.C. § 801 (a). This part of section 302 is not at issue here. Our issue concerns the second part of section 302 which permits appeals from final administrative orders. Specifically, does 7 N.T.C. § 302 permit an appeal of the final decision of an Appeal Authority, who has acted pursuant to the Navajo Nation Personnel Policies and Procedures? The answer is embedded in the words “as provided by law” in section 302.
The Division of Resources argues that under general principles of administrative law the Supreme Court has power to review the final decision of the Appeal Authority. Spencer’s response is that general principles of administrative law are inapplicable because the Navajo Nation has not enacted an Administrative Procedure Act. We disagree with the Division of Resources on this point. The Supreme Court’s appellate jurisdiction is not derived from general principles governing administrative law. The Supreme Court can acquire and exercise jurisdiction only in the manner dictated by the laws enacted by the legislative body.
Spencer contends that under section 302, the Supreme Court has jurisdiction to review only those final administrative decisions which have been expressly provided for by statute. Spencer’s interpretation requires that a statute expressly provide for an appeal from a final administrative decision to the Supreme Court. It is Spencer’s position that not all final administrative decisions are appealable to the Supreme Court. The Division of Resources proposes a different meaning of “as provided by law.” According to the Appellant, those words merely removed District Court jurisdiction over certain areas like taxation and workmen’s compensation, and it effectively gave the Supreme Court exclusive jurisdiction over those areas.
The Court must interpret and construe tribal statutes to effectuate the intent of the Tribal Council. Ambiguous statutes may require examining extrinsic material such as the legislative record to ascertain the Tribal Council’s intent. Plain and unambiguous statutes will be given effect as written.
We believe that the provision providing for appeals from final administrative decisions in section 302 is plain and unambiguous. First, we disagree with the Division of Resource’s interpretation of section 302. The Appellant’s interpretation may result in the District Court and the Supreme Court exercising concurrent jurisdiction in those areas in which section 302 did not remove District Court jurisdiction. This will create confusion and impede judicial efficiency. Next we agree with Spencer’s interpretation of section 302. An appeal from a final administrative deci*112sion is permitted only if a statute exists which expressly provides for an appeal to the Supreme Court. This was clearly the Tribal Council’s intent when it enacted section 302. Our decision is consistent with Spencer’s position that not all final administrative decisions are appealable to the Supreme Court.
The Tribal Council has established certain administrative agencies whose final decisions are appealable to the Supreme Court pursuant to statute. Those areas in which appeals are provided by law include workmen’s compensation, elections, taxation, and labor. The Tribal Council obviously knows how to expressly provide for appeals of final administrative decisions by statute. The Personnel Policies and Procedures, and the statutes under which these Procedures have beem promulgated, fail to provide for an appeal of a final Appeal Authority decision to the Supreme Court. We hold that the Supreme Court lacks jurisdiction under the current law to review a final decision of the Appeal Authority.
It is inappropriate for the Supreme Court to exercise jurisdiction in this case without clear authorization from the Tribal Council. Perhaps in the future the Navajo Tribal Council will enact an Administrative Procedure Act which will govern appeals from administrative agencies. Until that Act is reality, it is inappropriate for the Supreme Court to “create” its own jurisdiction in an area where the Tribal Council has not spoken. If the Appellant believes that the grievance proceedings have been conducted outside the law, then it has other remedies available in appropriate forums. Accordingly, the appeal is dismissed.
Chief Justice Tso and Associate Justice Bluehouse concur. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502824/ | OPINION
Per Curiam.
This is an election case in which the Appellant, Jonas Mustach, appealed the dismissal of his Statement of Grievance by the Appellee, Navajo Board of Election Supervisors. We heard the case on October 13, 1986, and the next day we reversed the Board and ordered a special election.
Mustach’s Statement of Grievance, which alleged four voting irregularities at Red Mesa Chapter during the 1986 primary elections, was filed on August 22, 1986. Mustach had been a candidate for the Navajo Tribal Council in the 1986 primary elections. The Statement was presented to the Board at its meeting in Gallup, New Mexico on August 26, 1986. There the Board, by a vote of six in favor and zero opposed, recommended that the staff “further investigate this case, contact all poll officials if [sic] all accusations are true or not.” Navajo Board of Election Supervisors, Board Meeting Minutes, dated August 26, 1986. The Board’s recommendation resulted in a compilation of personal statements from voters and poll officials associated with the Red Mesa Chapter.
The Board met again on September 4, 1986, when they voted, six in favor and zero opposed, to dismiss Mustach’s case. However, the Board also allowed Mustach an option to appeal the dismissal and request “a *116hearing within 15 days before the Navajo Board of Election Supervisors.” Navajo Board of Election Supervisors, Board Meeting Minutes, dated September 4,1986. Mustach was notified of the Board’s decision to dismiss by letter dated September 9,1986. In part the letter advised Mustach that “the statement of grievance filed by you does not contain facts to allow the Board to determine whether a recall is in order. You may request a hearing within 15 days of receipt of this letter if you so desire.”
On September 9,1986, Mustach requested a hearing before the Board. The Board granted the hearing and the hearing was scheduled for September 17, 1986. Mustach was notified of the hearing in the late evening of September 16,1986. The following day Mustach appeared at the hearing with some hastily gathered witnesses and without counsel.
The hearing proceeded before six Board members.1 After hearing testimony from each of the witnesses, the Board adjourned into executive session to discuss the case, and to formalize a decision. Apparently, while in executive session, three of the Board members “were told” not to vote on the final decision. Navajo Board of Election Supervisors, Tr. at 31. The non-voting three Board members were all members of the Navajo Tribal Council. Navajo Board of Election Supervisors, Tr. at 31. Upon reconvening, the remaining three Board members voted unanimously to dismiss Mustach’s case. Mustach was notified of the Board’s decision to dismiss the case by letter dated September 22, 1986. The following day Mustach requested a rehearing before the Board, which was denied on October 2, 1986.
Mustach filed his notice of appeal on October 7,1986. We granted the appeal on three initial issues: (1) who are the Board of Election Supervisors and the Board of Election Commissioners; (2) what percentage of the Board / Commissioners constitutes a quorum, and what is the rule where the law is silent on quorum; and (3) whether the action taken by the Board on September 17, 1986, constitutes an official act, and is therefore valid and binding. When the Court reviewed the initial pleadings these seemed to be the only issues. However, as responsive briefs and documents were filed, and as the Court heard oral arguments, the Court became aware of a fourth issue: whether the Board had followed the procedures established for resolving an election contest in this case. The Court will decide these four issues in this Opinion.
The Navajo Board of Election Supervisors has undergone three name changes since its creation in 1966.2 Counsel for the Board has diligently edu*117cated the Court on these changes, including the Board’s background in general. Consequently, the Court is now aware that the Navajo Election Commission and the Navajo Board of Election Supervisors are the same body with the latter being its official name. See Navajo Tribal Council Resolution, CAU-38-84.
We now address the issue pertaining to the Board’s adherence to the laws governing the resolution of election contests and disputes. The Navajo Tribal Council authorized the Board to establish and enforce rules and regulations governing Navajo Nation elections. 11 N.T.C. §52. One of the duties of the Board is to hear and resolve all election contests and disputes arising from Navajo Nation elections. 11 N.T.C. §51A(7).
The Board is mandated to follow certain procedures when resolving election contests and disputes. These procedures are established at 11 N.T.C. §51A(7)(a), (b), (c), (d), and (e), and are as follows:
(a) Within ten days of the incident complained of or the election, the complaining person must file with the Board a statement setting forth the reasons why he believes the election law has not been complied with. If, on its face, the statement of election contest is insufficient under the election law, the statement shall be dismissed by the Board.
(b) If the election contest is not dismissed, the Board shall conduct a hearing within 15 days thereafter to determine if the allegations in the statement are true and supported by the law.3 At the election contest or dispute hearing, the contestant and respondent may appear in person or through legal counsel. The contestant shall have the burden of proving the allegations contained in the statement of contest or dispute by a preponderance of the evidence, unless a more stringent burden of proof is required by other provisions of the Election Law or Tribal Code.
(c) If, after the hearing, it is unclear whether the allegations in the statement are true or not, the Board shall further investigate the matter complained about.
(d) The Board shall render its decision orally at the conclusion of the hearing or may request the parties to submit briefs within a time period specified by the Chairman of the Board, and issue a written decision thereafter.
(e) A party who wishes to appeal from a Board decision must file a notice of appeal with the Supreme Court of the Navajo Nation within ten (10) days after the decision is made.4
*118The function of the Court, when reviewing the action of the Board, is to determine whether the Board abused its discretion or failed to follow its procedures. Johnson v. June, 4 Nav. R. 79 (1983); Williams v. The Navajo Election Commission, 5 Nav. R. 25 (1985). While reviewing for the Board’s compliance with its procedures, we must also decide if the Board in resolving the election contest or dispute, violated the rights of the contestant.
Mustach’s case is replete with evidence showing that the Board failed to follow the law on resolution of election contests and disputes. The Board is required to review the Statement of Grievance on its face for sufficiency under the election law upon presentation. 11 N.T.C. §51A (7)(a). The Board then must either dismiss the Statement, or if the Statement is not dismissed, schedule a hearing on the merits of the allegations contained in the Statement. 11 N.T.C. §51A (7)(a) and (b).
The Board’s first violation of the election law occurred with its failure to schedule a hearing for Mustach after nondismissal of Mustach’s Statement. Instead of scheduling the required hearing, the Board committed another violation by ordering an investigation into allegations in the Statement. Under the law, an investigation succeeds the hearing, and is justified only “[i]f, after the hearing, it is unclear whether the allegations in the statement are true or not.” 11 N.T.C. §51A(7)(c).
On September 4,1986, the Board decided to dismiss Mustach’s Statement. This decision was arrived at after the Board reviewed the reports compiled from the investigation. The third violation occurred when the Board failed to finalize its decision to dismiss. A final decision at this point would have allowed Mustach to immediately appeal to the Supreme Court, and the appeal would have been reviewed and heard in mid September.
Instead of entering a final decision, on September 4, the Board allowed the case to linger by advising Mustach to request a hearing before the Board within 15 days. This was followed by a letter dated September 9,1986, which also advised Mustach to request a hearing “if you so desire.” There lied the fourth violation of the election law. The law required the Board to set a hearing for Mustach. 11 N.T.C. §51A(7)(b). It does not place the burden upon Mustach, or any contestant, to request a hearing before the board.
The procedures established for resolution of election contests and disputes were not intended to be discretionary with the Board. The Tribal Council, for reasons of due process and speeding resolutions of election contests and disputes, intended that these procedures be followed. There are other obvious reasons: election ballots for the general election must be printed well in advance of the general election; resolution of a primary election contest is limited to the time between the primary and general elections; delaying resolution of the contest results in reduced campaign time for candidates; and the parties often incur unnecessary financial expenses. We hold that the Navajo Board of Election Supervisors failed to follow the election law in resolving *119Mustach’s Statement of Grievance. The failure to follow the election law was highly prejudicial to Mustach.
The Indian Civil Rights Act of 1968,25 U.S.C. §1302(8), guarantees procedural due process in hearings before tribal administrative agencies. We know that the Navajo Nation does not possess a constitution. For this reason, it is incumbent upon the Navajo Nation Courts to preserve the concepts of due process of law. Halona v. MacDonald, 1 Nav. R. 189 (1978). Procedural due process, under the Indian Civil Rights Act, relates to the requisite characteristics of proceedings seeking to effect a deprivation of liberty or property. Yazzie v. Jumbo, 5 Nav. R. 75 (1986).
Procedural due process encompasses notice and an opportunity to be heard before a proper tribunal. Yazzie v. Jumbo, Id. Due process requires that notice of hearing be given sufficiently in advance of the scheduled date of hearing, so that the party will have reasonable time to prepare.
In this case, Mustach was notified of the hearing in the late evening and only a few hours before the scheduled time for hearing. The results were as expected. Mustach had no time to locate counsel and very little time to contact and prepare witnesses. Mustach appeared at the hearing totally unprepared to present his case. These are exactly the results which due process must protect against. These circumstances lead us to hold that, under the principles enunciated above, Mustach was not afforded due process.
The final two issues concern the Board’s quorum requirement, and whether the September 17, 1986 decision of the Board was valid. We hold that the Board lacked a quorum, therefore its September 17, 1986 decision is invalid.
The rule is that in the absence of special rules of procedure adopted by a body, or adopted for it by an outside power having the right to do so, its procedure is governed by parliamentary law. 59 Am.Jur. 2d Parliamentary Law §3; 67A C.J.S. Parliamentary Law §4; McCormick v. Board of Education, etc., 58 N.M. 648, 274 P. 2d 299, 308 (1954). Title 11 of the Navajo Tribal Code does not contain specific rules of procedure for meetings of the Navajo Board of Election Supervisors. Counsel for the Board has advised us that, because rules of procedure have not been adopted by the Board and by the Navajo Tribal Council, the procedure for Board meetings and hearings have been conducted using general parliamentary law. Brief for Appellee at 6. We agree that parliamentary law is appropriate where the Board has not adopted rules of procedure for Board meetings.
A quorum of a legally constituted body must be present at a meeting in order to validate its action or to transact business. 67A C.J.S. Parliamentary Law §6b; Summary quoted in McCormick v. Board of Education, etc., Id. A quorum, in the absence of a statute or rule defining a quorum, is the majority of a definite or limited number of members. 67A C.J.S. Parliamentary Law §6b; Federal Trade Commission v. Flotill Products, *120Inc., 389 U.S. 179, 183 (1967). Thus, five of the present nine Board members would constitute a quorum for the purpose of transacting business.
The Board’s position is that, because six of the nine Board members attended the September 17, 1986 hearing, it had a legally sufficient quorum to conduct an official hearing. A plausible argument with which we disagree. The September 17 makeup would indeed be a quorum for transacting any business other than Mustach’s hearing.
The Board’s position fails to recognize another rule of parliamentary law: “Members disqualified because of interest cannot be counted for the purpose of making a quorum, or a majority of the quorum.” 67 A C.J.S. Parliamentary Law §6b; Enright v. Hecksher, 240 F. 863 (1917). Here the three Board members who were disqualfied from voting on the final decision were Navajo Tribal Council members. Mustach was also a member of the Navajo Tribal Council.
The record of the September 17,1986 hearing reflects disqualification of the three Tribal Council members: “Members of [the] Navajo Tribal Council, Mr. Haskie, Mr. Milford and Mr. Bradley were told to be excused [sic] from making decision.” Navajo Board of Election Supervisors, Tr. at 31 (emphasis ours). It does not matter that the three disqualified Board members “were present during the entire grievance hearing.” Brief for Appellee at 7. The determining factor is that the three Board members were disqualified from voting on the final decision due to a conflict of interest. The conflict arose because the three disqualified Board members and Mustach were all members of the Navajo Tribal Council. To prevent a conflict, the hearing should have been conducted before a Board comprised of non-Tribal Council members. Any decision resulting from a hearing entered by a Board lacking a quorum is invalid.
After oral arguments, and on October 14, 1986, we asked the parties to suggest a remedy with special consideration for the nearness of the general election. The parties agreed that a special election for the Red Mesa chapter would be the most feasible. Thus, our order reflects that agreement, and also our own decision to redress Mustach for the Board’s disregard of the election laws. The Navajo Board of Election Supervisors’s decision to dismiss Mustach’s Statement of Grievance is reversed, and a special election ordered.
. In 1984, the Navajo Tribal Council fixed the Board Membership at ten. Presently nine members comprise the Board with one vacancy. Three of the present nine Board members are also members of the Navajo Tribal Council.
. These have been the names: a) Board of Election Supervisors of the Navajo Tribe; b) Navajo Election Commission; and c) Navajo Board of Election Supervisors.
. This part is subject to two interpretations: a) If the election contest is not dismissed, the hearing must be held within 15 days after the Statement of Grievance is filed; or b) If the election contest is not dismissed, the hearing must be held within 15 days after the decision not to dismiss the Statement of Grievance is entered. The interpretation of this part is not an issue before the Court, therefore clarification will be left to the Board.
. The Board and all appellants are advised that our new Navajo Rules of Civil Appellate Procedure, Rule 7, requires that the appellant attach a copy of the Board’s final decision to the notice of appeal. This means that in each case, the Board must enter a final written decision. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502825/ | OPINION
Per Curiam.
The Appellant, Navajo Nation through its Prosecutor’s Office, appealed the dismissal of its Petition For Adjudication Of A Dependent Child by the Shiprock Children’s Court. We granted the appeal to decide whether the Navajo Nation Children’s Courts have jurisdiction over Child Dependency Petitions involving Navajo children, where the alleged conduct upon which the Petition is based, occurred outside the exterior boundaries of the Navajo Indian Reservation.
The Navajo-mother and Anglo-father are involved in a protracted custody dispute concerning the child in the state district court of New Mexico. The mother, who had been living in Albuquerque, New Mexico, took the child and returned with the child to the Shiprock area of the Navajo Nation in violation of a state court order. Shortly thereafter, the mother initiated the filing of a Petition For Adjudication Of A Dependent Child in Shiprock Children’s Court.
On June 15,1986, the Navajo Nation Prosecutor’s Office filed the Petition alleging that the Navajo child had been sexually abused by the father, and that the alleged abuse had occurred in Albuquerque, New Mexico, *122which is outside the exterior boundaries of the Navajo Indian Reservation. The Petition alleged that the Shiprock Children’s Court had jurisdiction, pursuant to 9 N.T.C. §1055 (1985), of the Navajo Nation Children’s Code. On June 30, 1986, the Shiprock Children’s Court entered an ex-parte order giving temporary custody of the child to the Navajo Division of Social Welfare, and the Court also ordered that the child be made a ward of the Shiprock Children’s Court.
On July 29,1986,1 the Appellee, Bryan O’Hare, moved to dismiss the Petition for lack of jurisdiction by arguing that the alleged sexual abuse was “committed in Albuquerque, New Mexico, which is beyond [the] jurisdiction of the Shiprock Children’s Court of the Navajo Nation.” Appellee’s Motion to Dismiss, filed July 29,1986. The Appellee also sought dismissal under the Uniform Child Custody Jurisdiction Act, because the Navajo Nation was not the home state of the child, because the child had not resided in Indian Country for six months. Appellee’s Motion to Dismiss, filed July 29,1986. The Appellee’s Motion to Dismiss was taken under advisement and the next day, on July 30,1986, the Shiprock Children’s Court dismissed the Petition for lack of jurisdiction, and the child was released to New Mexico authorities.
The United States Supreme Court has said that Indian Tribal Courts must have the first opportunity to determine their jurisdiction. National Farmers Union Insurance Cos., et al. v. Crow Tribe of Indians, et al., 471 U.S. 845, 105 S.Ct. 2447 (1985). Although that case dealt with the question of whether a federal district court had properly granted an injunction against execution of a tribal court judgment, the rule is equally applicable where, as here, actions concerning the child had been filed in three separate jurisdictions. One case is pending in the state court of New Mexico to determine the child’s custody following a divorce. The other was an Application for a Writ of Habeas Corpus, filed in federal district court of New Mexico, to compel the Navajo Nation to release the child to its father, and to enjoin any proceedings in Shiprock Children’s Court concerning the child. The third action is the dependency petition in Shiprock Children’s Court, which is the subject of this appeal.
Regardless of the proceedings initiated in other jurisdictions involving the child, the Shiprock Children’s Court had a duty to decide its jurisdiction. Our review of the Children’s Court record, and specifically the order dismissing the Petition, leads us to conclude that the order was entered without finding facts necessary to determine jurisdiction. The order itself *123does not contain findings of fact which would justify dismissing the Petition for lack of jurisdiction.
A preliminary inquiry for a Navajo Nation Children’s Court is to decide whether it has subject matter jurisdiction of the case. Subject matter jurisdiction over child dependency cases is vested in the Navajo Nation Children’s Courts by virtue of 9 N.T.C. §1055(1) (1985): “The Children’s Court shall have exclusive original jurisdiction of all proceedings under the Children’s Court in which a child is alleged to be a. . . dependent child. . . .” At 9 N.T.C. §1002, subsection 15(E) (1985), a dependent child is defined as one “who has been. . .sexually abused by his parent. . . .” Thus, the Navajo Nation Children’s Court must decide if the petition alleges that the minor is a dependent child. In this case, the Petition of the Navajo Nation has alleged that the child has been subjected to sexual abuse by the father. The Shiprock Children’s Court therefore has subject matter jurisdiction over the Navajo Nation’s Petition.
The inquiry then shifts to 9 N.T.C. §1055(4) (1985), to determine whether the Navajo Nation Children’s Court has jurisdiction over the child. The first part of §1055(4) deals with jurisdiction over custody matters. We will not discuss custody in this appeal. Our concern is the final part of §1055(4) which determines whether the Shiprock Children’s Court has jurisdiction over the dependency petition involving the child, A.O. The statute reads as follows: “The Children’s Court shall have exclusive jurisdiction over any Navajo child who resides or is domiciled within the borders of Navajo Indian Country, or who is a ward of the Children’s Court.” 9 N.T.C. §1055(4) (1985). The parties have acknowledged that the child is of one-half blood Navajo, and the child is enrolled in the Navajo Tribe. With these undisputed facts, we can only conclude that A.O. is a Navajo child for purposes of §1055(4).
Based upon the record before us, we are unable to determine either the residence of the child, the domicile of the child, or whether the child was properly made a ward of the Children’s Court, pursuant to 9 N.T.C. §1405 (1985). Lacking these crucial findings of fact, we are unable to decide whether the Shiprock Children’s Court had jurisdiction over the dependency petition concerning the child, A.O.
Nonetheless, we must set this rule to guide the Navajo Nation Children’s Courts: In a dependent child case under the Navajo Nation Children’s Code, if any of the factors (residence, domicile, ward of court) in 9 N.T.C. §1055(4), is proven by a preponderance of the evidence, then the Children’s Court has jurisdiction over the Navajo child, even where the alleged conduct giving rise to the petition occurred outside the exterior boundaries of the Navajo Indian Reservation. The rule we have established is justified in light of the Navajo Nation’s recognized interest in its children. Congress, in the Indian Child Welfare Act, 25 U.S.C. §1901(3), 9 STAT. 3069 (1978), has *124found “that there is no resource that is more vital to the continued existence and integrity of Indian Tribes than their children. . . .” The most precious resource of the Navajo Nation is indeed its children. Having recognized this, the Navajo Tribal Council enacted the Navajo Nation Children’s Code, to protect this vital resource of the Navajo Nation.
The order dismissing the Petition is reversed, and the case is remanded to the Shiprock Children’s Court to determine if any of the factors in §1055(4) exists, and for proceedings consistent with this Opinion.
. On this same date, the presiding Judge of the Shiprock Children’s Court was served with Summons and an Application for a Writ of Habeas Corpus and Injunction, which had been filed by the Appellee in the United States District Court for the District of New Mexico. The hearing on the application for the Writ and Injunction had been scheduled for August 1,1986 in Albuquerque, New Mexico. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502826/ | OPINION
Opinion delivered by
Austin, Associate Justice.
The Appellant, Kee Yazzie Mann, appealed an order of the Crownpoint District Court which held him in direct criminal contempt for disobeying a writ of habeas corpus. Appellant Mann urges reversal on two points: (1) the district court lacked venue to issue the writ of habeas corpus; and (2) the district court erred in summarily punishing him for contempt.
On March 27,1986, the mother of the child filed a petition for a writ of habeas corpus in the Crownpoint District Court. The petition alleged that Appellant Mann had refused to return his born-out-of-wedlock child to its mother following a brief visit. That same day, a writ of habeas corpus was issued commanding Appellant Mann to bring the child before the Crownpoint District Court on April 4,1985.
On April 4,1985, Appellant Mann appeared in court pro-se, and without the child. Counsel for the mother then moved to have Appellant Mann held in contempt for disobeying the court’s order to have the child before the court on that date. In response to the motion, the district judge without further hearing, found Appellant Mann guilty of interfering with judicial proceedings under the Criminal Code, 17 N.T.C. §477. The record does not show that Appellant Mann was advised of the criminal contempt charge, nor given an opportunity to explain his alleged contemptuous conduct. The record is also devoid of the facts upon which the conviction for direct criminal contempt was based. Appellant Mann was sentenced to a payment of a fine of $100.00. See JUDGMENT AND MITTIMUS, dated April 4,1985.
*126I. Venue
Appellant Mann contends that Rule 26, Navajo Rules of Civil Procedure, requires our reversal, because that rule mandates that, “an action shall be filed in the district in which any defendant resides or in which the cause of action arises.” Brief for Appellant at 1. Appellant Mann argues that at the time the petition was filed he resided in Tuba City district, and the cause of action arose in Window Rock district, because that was where the mother released custody of the child.
Jurisdiction of a court is not the same as venue of a court. Jurisdiction refers to the power of a Navajo Nation court to decide a case on its merits, while venue refers to the district in which the case may be heard. Venue is procedural and not jurisdictional. See Lynch v. Lynch, 3 Nav. R. 219 (Window Rock D. Ct. 1982). Reversals are appropriate where a district court adjudicates a matter over which it lacked jurisdiction.
Venue is a privilege asserted by the party in whose favor it runs to have the case tried in a convenient forum. Venue is waived if the party who holds the privilege fails to timely object to venue in the district in which the suit had been brought. Appellant Mann’s reliance on Rule 26, Navajo Rules of Civil Procedure, is proper, but he has failed to show that he made a timely objection to venue in the Crownpoint District Court. The record shows that Appellant Mann first raised the venue issue in his motion for reconsideration of the order adjudging him in contempt. By then, the circumstances resulting in the issuance of the writ of habeas corpus had been resolved, and the case had been dismissed. We hold that Appellant Mann has failed to timely object to venue in the Crownpoint District Court, thereby resulting in a waiver of his venue privilege.
II. Contempt
Navajo Nation courts have inherent power to punish for contempt of their authority and to coerce compliance with their orders. In the Matter of Summary Contempt of: Leonard R. Tuchawena, 2 Nav. R. 85 (1979); In the Matter of Contempt of: Arnold Sells, 5 Nav. R. 37 (1985); See also Navajo Nation v. Davis, 3 Nav. R. 248 (Window Rock D. Ct. 1982). A failure to obey a writ of habeas corpus is contemptuous behavior punishable by the court. The power of Navajo courts to punish for contempt must be exercised within the bounds of due process embodied in the Indian Civil Rights Act, 25 U.S.C. §1302(8) (1968), and the Navajo Bill of Rights, 1 N.T.C. §8 (1967) (current version at 1 N.T.C. §3 (1986)).
Contempts are either civil or criminal, and either direct or indirect. In the Matter of Summary Contempt of: Leonard R. Tuchawena, 2 Nav. R. *12785 (1979); Navajo Nation v. Davis, 3 Nav. R. 248 (Window Rock D. Ct. 1982). The purpose for which the court exercises its contempt powers will determine whether the contempt is civil or criminal. Matter of Klecan, 93 N.M. 637, 603 P. 2d 1094 (1979); Perry v. O’Donnell, 759 F. 2d 702 (9th Cir. 1985). Thus civil contempt proceedings are used to preserve and enforce the rights of litigants, and to compel obedience to the orders, writs, mandates and decrees of the court. Criminal contempt proceedings are used to preserve the authority and vindicate the dignity of the court. Matter of Klecan, 93 N.M. 637, 603 P. 2d 1094 (1979); accord Hing. v. Thurston, 101 Ariz. 92, 416 P. 2d 416 (1966).
Direct contempts are those contemptuous acts committed in the presence of the judge, while indirect contempts are those contemptuous acts committed outside the presence of the judge. In the Matter of Summary Contempt of: Leonard R. Tuchawena, 2 Nav. R. 85, 87 (1979); Matter of Klecan, 93 N.M. 637, 603 P. 2d 1094 (1979); Hing v. Thurston, 101 Ariz. 92, 416 P. 2d 416 (1966). The direct-indirect distinction is important for purposes of procedure. The court can dispose of a direct contempt summarily, while it must hold a hearing if the contempt is indirect. In the Matter of Summary Contempt of: Leonard R. Tuchawena, 2 Nav. R. 85 (1979).
The record shows that Appellant Mann was charged with direct criminal contempt for his disobedience of the writ of habeas corpus. The issue of whether the judge properly classified the contempt as criminal was not raised. Nonetheless, our judges must have discretion to proceed with a contempt charge in a manner consistent with the “purpose” rule that we have adopted above. Cf. In the Matter of Summary Contempt of: Leonard R. Tuchawena, 2 Nav. R. 85 (1979) (district judges have discretion to determine what acts constitute contempt).
Judges sometimes find it difficult to make the direct-indirect distinction. Our opinion is that if the judge must rely upon facts beyond his knowledge, or upon the confession of the contemnor, or upon the testimony of others to ascertain facts necessary to determine the contempt, then the contempt is indirect. In a case where it is difficult to determine whether the contempt is direct or indirect, then justice is better served if the contempt is adjudicated as indirect.
In this case, Appellant Mann’s disobedience of a valid court order is indirect contempt. The judge lacked personal knowledge of the facts which would show why the child was not brought before the court. It is unlikely that Appellant Mann can be convicted of criminal contempt without either his confession or the testimony of others. We have also said that a failure to obey a court order is indirect contempt. In the Matter of Summary Contempt of: Leonard R. Tuchawena, 2 Nav. R. 85, 87 (1979).
*128Punishment for contempt, as in this case, usually results in loss of property or liberty. It is imperative then that Navajo courts comply with due process in contempt proceedings. A person alleged to be in indirect civil or criminal contempt of court must be notified of the charges, have a right to be represented by counsel, have a reasonable time to prepare a defense, and have an opportunity to be heard. The alleged contemnor must have their day in court. The rules of criminal procedure are also applicable to indirect criminal contempt proceedings.
A judge can punish summarily if the contemptuous behavior occurred before the judge. Summary punishment is appropriate whether the contempt is denoted civil or criminal. However, our opinion is that Navajo courts must still afford due process protections in direct contempt proceedings. The judge must advise the contemnor of the charges and give the contemnor an opportunity to explain the contemptuous conduct. The order of contempt must show that the judge saw or heard the conduct constituting the contempt and that the contempt was committed in the presence of the court. The order must also state the facts constituting the contempt and the punishment imposed.
We have just said that Appellant Mann’s contemptuous conduct is indirect. Before Appellant Mann can be convicted of indirect criminal contempt, he must have been afforded a hearing which complied with due process. The record reflects that Appellant Mann was not given a hearing. Therefore his rights to due process have been violated.
In comparison, had the matter been a direct criminal contempt, then the court must still afford Appellant Mann with due process. The record does not show that Appellant Mann was given notice of the charges, or even allowed an opportunity to explain his conduct. The record is also devoid of facts which would support Appellant Mann’s conviction of criminal contempt.
We hold that Appellant Mann’s right to due process was violated when he was convicted of contempt without being afforded a hearing. We have no choice but to reverse and dismiss the district court order adjudging Appellant Mann in direct criminal contempt of court. Whatever fine Appellant Mann has paid to the court shall be returned, and the district court record shall reflect a dismissal.
Chief Justice Tso and Associate Justice Bluehouse concurred. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502827/ | OPINION
Opinion delivered by
Austin, Associate Justice.
There are two appellants in this case. First, attorney Larry Kee Yazzie appeals the order which adjudged him in contempt for failure to inform the district court of the attorney’s fee rule in Hall v. Arthur, 3 Nav. R. 35 (1980). Second, Jack John appeals the same order which denied his motion to collect attorney’s fees from the Appellees, Russell and Elsie Herrick.
The Herricks sued defendants for personal injuries and property damage sustained in a two-vehicle accident they claim was caused by Alfred John. Appellant John was sued on the theory that he negligently entrusted a vehicle he had “purchased” and “owned” to Alfred John. Complaint, Count III.
Appellant John retained attorney Yazzie to defend him. Appellant John’s answer shows that he moved for dismissal of the suit against him for plaintiffs’s failure to state a claim, and to have the court award him attorney’s fees. At trial, Appellant John’s motion to dismiss was granted, and he then renewed his motion for an award of attorney’s fees. The record does not show, nor has counsel for the Herricks shown on appeal, that the Herricks objected to the motion for attorney’s fees at trial. The final order shows *130that the court awarded $545.00 in attorney’s fees to Appellant John. Order of May 28, 1985. The court instructed attorney Yazzie to draft the final order which was signed by the district judge.
Two months after entry of the final order, and upon motion of the Her-ricks, the court held a hearing to reconsider its award of attorney’s fees. Upon reconsideration, the court found that Hall v. Arthur, Id., precluded an award of attorney’s fees to Appellant John. The court then amended its May 28,1985 order to show that attorney’s fees were denied to Appellant John. Order of August 9, 1985. This is the order that Appellant John is appealing.
Attorney Yazzie did not participate in the reconsideration hearing, but nonetheless, the court found that attorney Yazzie “knew or reasonably should have known” of the attorney’s fee rule in Hall v. Arthur, Id., and that he had failed to inform the court of the rule. Order of August 9,1985. This finding resulted in the court holding attorney Yazzie in contempt. The record shows that attorney Yazzie was not notified of the contempt charge, nor was he given an opportunity to be heard. Attorney Yazzie was ordered to pay a fine of $25.00, or be jailed for three days.
I. Contempt
Navajo Nation Courts have inherent power to punish for contempt. In the Matter of Summary Contempt of: Leonard R. Tuchawena, 2 Nav. R. 85 (1979); In the Matter of Contempt of: Arnold Sells, 5 Nav. R. 37 (1985); In the Matter of Contempt of: Kee Yazzie Mann, 5 Nav. R. 125 (1987); See also In the Matter of Daniel Deschinny, 1 Nav. R. 66 (1972); Washburn v. McKensley, 1 Nav. R. 114 (1977); Mike v. Mike, 1 Nav. R. 183 (1978). And contempts are either civil or criminal, and either direct or indirect. In the Matter of Summary Contempt of: Leonard R. Tuchawena, 2 Nav. R. 85 (1979); In the Matter of Contempt of: Kee Yazzie Mann, 5 Nav. R. 125 (1987). But the court must always first determine whether the person’s conduct constitutes contempt. Thus, our issue is whether attorney Yazzie’s failure to inform the court of the attorney’s fee rule in Hall v. Arthur, 3 Nav. R. 35 (1980), constitutes contempt.
Contempt is any act which is calculated to hinder, obstruct, or embarrass the court in the administration of justice, or which lessens the dignity or authority of the court. BLACK’S LAW DICTIONARY 288 (5th ed. 1979). A failure to obey an order of the court is contempt. In the Matter of Contempt of: Kee Yazzie Mann, Id.; Washburn v. McKensly, 1 Nav. R. 114 (1977); See also In the Matter of Summary Contempt of: Leonard R. Tuchawena, 2 Nav. R. 85 (1979). Attorney Yazzie did not disobey an order of the court, therefore he cannot be held in contempt for disobeying an order.
*131But has attorney Yazzie in any way hindered, embarrassed, or obstructed the administration of justice? We hold that he did not. Attorney Yazzie’s first request for attorney’s fees appeared in the answer to the complaint. An alert opposing counsel would immediately prepare an objection and argue inadequate research of the law. Attorney Yazzie renewed his motion for attorney’s fees at trial. Herricks’s counsel should have immediately objected to the motion, citing Hall v. Arthur, 3 Nav. R. 35 (1980), in support, and thus placing the issue of attorney’s fees before the court. Our Opinion is that attorney Yazzie properly presented his request for attorney’s fees twice, and we will not condone holding an attorney in contempt for good faith practice.
Although ethical considerations require an attorney to disclose all applicable laws on the issues at trial, see In the Matter of Daniel Deschinny, 1 Nav. R. 66 (1972), in this case where opposing counsel has failed to mount opposition to a motion, it is highly inappropriate to hold attorney Yazzie in contempt. Inaction by Herricks’s counsel is like consenting to the request for attorney’s fees, and thus attorney Yazzie was under no further obligation to present supporting or conflicting authorities, unless requested by the court.
We acknowledge that Navajo courts have authority to determine what acts constitute contempt. In the Matter of Summary Contempt of: Leonard R. Tuchawena, 2 Nav. R. 85 (1979); Cf. In the Matter of Contempt of: Kee Yazzie Mann, 5 Nav. R. 125 (1987). But our holding in this case does not lessen that authority. Our opinion is that attorney Yazzie properly proceeded before the court, and holding an attorney in contempt for proper practice is a clear abuse of discretion. See In the Matter of Summary Contempt of: Leonard R. Tuchawena, 2 Nav. R. 85 (1979).
II. Attorney’s Fees
The attorney’s fees rule within the Navajo Nation is that each party in litigation is responsible for their own attorney’s fees, Hall v. Arthur, 3 Nav. R. 35 (1980). Recognized exceptions are (1) when a statute provides for attorney’s fees, Hall v. Arthur, Id.; (2) when the case presents a special set of circumstances, Hall v. Arthur, Id.; Morgan v. Morgan, 5 Nav. R. 64 (1985); and (3) if a pleading or document is not submitted in good faith, or it contains material misstatements of fact or law, or it is not made upon adequate investigation or research. Judicial Conference Resolution (1982); 1 N.L.J. 5144.
Appellant John must prove that his case is an exception to the rule before he is entitled to attorney’s fees. Appellant John first contends that his case presents a special set of circumstances. Contempt proceedings and con*132tracts providing for payment of attorney’s fees are a special set of circumstances. Hall v. Arthur, 3 Nav. R. 35 (1980). So is an action for dissolution of marriage. Morgan v. Morgan, 5 Nav. R. 64 (1985). Appellant John has failed to show that his case falls into one of these areas, therefore his case does not present a special set of circumstances.
The Courts must exercise restraint in creating exceptions to the Navajo rule on attorney’s fees. In a prior decision we said: “We would prefer that the Navajo Tribal Council, as the governing body of the Navajo Nation, approve any deviation from this general rule.” Hall v. Arthur, 3 Nav. R. at 41 (1980). This does not mean that in an appropriate case, supported by sound reasoning, this Court cannot create another exception.
Next we consider Appellant John’s contentions that the Herricks’s pleadings were not submitted in good faith, nor based upon adequate investigation or research. These contentions are not supported by evidence showing how pleadings were not submitted in good faith, nor were we shown evidence proving inadequate investigation or research.
Appellant John directs us to look at the dismissal of the suit itself to find support for his arguments. He argues that the court has found a lack of merit in the complaint, and that alone proves bad faith pleading, and inadequate investigation or research. We decline to adopt such reasoning. Many suits are dismissed for lack of merit without an award of attorney’s fees.
A request for attorney’s fees must be supported by evidence proving that the pleadings were not submitted in good faith, or that the pleadings were submitted without investigating the relevant facts or without researching the applicable law. In the instant case, a mere assertion of bad faith based upon dismissal of a suit will not suffice. We hold that Appellant John has failed to prove an exception to the Navajo rule on attorney’s fees.
III. Mandate
The order of the Window Rock District Court holding Appellant Larry Kee Yazzie in contempt is reversed and dismissed. The record of the district court shall show a dismissal of the contempt charge. All fines that Mr. Yazzie has paid for contempt shall be returned.
The order of the Window Rock Distrct Court denying Appellant Jack John’s motion for attorney’s fees is affirmed. Each party to this appeal is responsible for their own attorney’s fees on appeal and in the action in the district court.
Chief Justice Tso and Associate Justice Bluehouse concur. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502828/ | OPINION
Per Curiam.
The findings of fact, conclusions of law, and final judgment were entered by the Window Rock District Court on December 15, 1986. The Appellants, Betty Yellowhorse Chauncey and Mary Ann Yellowhorse, filed their notice of appeal on January 26, 1987. On February 12, 1987, Appellee, Navajo Tribe of Indians, filed a motion to dismiss the appeal, alleging that the appeal was not timely filed pursuant to Rule 2(c), Navajo Rules of Appellate Procedure. The Appellants did not respond to the motion. We agree that the appeal is untimely and we dismiss the appeal.
A party desiring to appeal from a final district court judgment “shall within 30 days after the day such judgment or order is rendered appeal to the Supreme Court stating fully the grounds for appeal.” 7 N.T.C. §801(a) (1985) (emphasis added). Navajo appellate rules require that an appeal from a district court judgment must be filed within 30 calendar days of the date the final judgment or order is entered into the record.1 Rule 2(c), Navajo Rules of Appellate Procedure.
*1347 N.T.C. §801(a) is a jurisdictional statute, therefore this Court lacks jurisdiction to review an appeal which is not filed within the time prescribed. Window Rock Mall, Ltd., et al. v. Day IV, 3 Nav. R. 58 (1981). We will always dismiss an appeal which has not been filed within 30 days of entry of the final judgment by the district court. Entry of the final judgment means the day the judgment is signed by the district judge. The 30 days appeal period begins to run the day after the judgment is signed by the district judge. See Yabeny v. Tome, et al., 1 Nav. R. 257 (1978); Rule 20, Navajo Rules of Appellate Procedure; See also Rule 5(a), Navajo Rules of Civil Appellate Procedure.
In this case, the district judge signed the final judgment on December 15, 1986, and the notice of appeal was filed on January 26,1987. The appeal was not filed until 42 days after entry of the final judgment. This Court lacks jurisdiction to review the Appellants’s appeal. The appeal is dismissed as to Appellants Mary Ann Yellowhorse and Betty Yellowhorse Chauncey for failure to comply with 7 N.T.C. §801(a) (1985).
. Rule 8(a), Navajo Rules of Civil Appellate Procedure (effective March 1, 1987), requires that an appeal must be filed “not later than thirty (30) days after the entry of the judgment from which the appeal is taken, unless a different time is provided by law.” | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502829/ | OPINION
Per Curiam.
The issue in this case is whether the Supreme Court must automatically enlarge the time for filing an appeal if the appeal is filed by mail. We decide in the negative and dismiss the appeal.
The final judgment was signed by the district judge on January 6,1986. The Appellant claims that the notice of appeal was mailed to the Supreme Court Clerk on January 31,1986. The Clerk received the notice of appeal by mail on February 10, 1986, and it was filed on the same date. The Appellee filed a motion to dismiss the appeal alleging that the appeal was not timely. The Appellant responded raising the issue before us.
Within the Navajo Nation, an appeal is not timely unless it is filed with the Supreme Court Clerk within 30 days after entry of judgment by the district court. 7 N.T.C. §801(a); Window Rock Mall, Ltd., et al. v. Day IV, 3 Nav. R. 58 (1981); The Navajo Tribe of Indians v. Yellowhorse, Inc., et al., 5 Nav. R. 133 (1987). Entry of judgment is the day that the district judge signs the final judgment or order and the appeal time begins to run the next day. The Navajo Tribe of Indians v. Yellowhorse, Inc., et al., Id. 7 N.T.C. §801(a) is a jurisdictional statute. Window Rock Mall, Ltd., et al. v. Day IV, 3 Nav. R. 58 (1981). Thus, the Supreme Court will not enlarge the time period for mail filing of an appeal.
*136The Appellant argues that he mailed the appeal several days prior to expiration of the time period, and the delay was beyond his control. This argument is unacceptable, because the Appellant assumed the risk of delay when he decided to file his appeal by mail. The time limits set forth in 7 N.T.C. §801(a) will not be enlarged for mail filings. The only possible enlargement is if the thirtieth day falls on a Saturday, Sunday, or court holiday. Then the appeal may be filed by the end of the next business day. Rule 20, Navajo Rules of Appellate Procedure; See also Rule 5(a), Navajo Rules of Civil Appellate Procedure.
The record shows that the appeal was not timely filed in this case. We have no choice but to grant the Appellee’s motion to dismiss the appeal. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502831/ | OPINION
Per Curiam.
The Appellant, John Brown Jr., filed a Statement of Election Contest alleging three election irregularities which he claimed caused him to lose the 1986 general election for the Navajo Tribal Council. The only irregularity on appeal is the allegation that 53 absentee votes, which were declared spoiled, should have been included in the final count.
The votes were counted three times and each count showed that Appellant Brown had lost the election. The counts are as follows: (1) November 4,1986: 252-226; (2) November 6,1986: 252-226; and (3) November 18, 1986: 227-199. The 53 spoiled votes were not counted on November 18, 1986, but they were included in the other two counts.
The Navajo Board of Election Supervisors dismissed Appellant Brown’s Statement for insufficiency after finding that the Statement did not set forth reasons why Appellant Brown believed the election law was not complied with. On appeal Appellant Brown presents two issues: (1) whether the Board abused its discretion in dismissing his Statement for insufficiency; and (2) whether the spoiled ballots should have been included in the final result.
The election laws provide that an election contestant must file a Statement which contains reasons why the contestant believes the election law was not complied with. 11 N.T.C. §51(a)(7)(A). The Statement must be *140dismissed if, on its face, it is insufficient under the election laws. 11 N.T.C. §51(a)(7)(A). However, the election laws fail to specify what constitutes a sufficient Statement.
A Statement will be sufficient on its face if it specifies which election law was violated, Williams v. The Navajo Election Commission, 5 Nav. R. 25 (1985), and if it contains enough facts to raise the issue that the election results are not regular and proper. See Johnson v. June, 4 Nav. R. 79 (1983). These facts, as they appear in the Statement, must support the allegation that an election law was violated. Williams v. The Navajo Election Commission, 5 Nav. R. 25 (1985). Finally, the Statement taken as a whole, which shall include all attached documents, must raise a possibility that the election results will be impeached. Johnson v. June, 4 Nav. R. 79 (1983).
The Board must be careful not to make a decision on the merits of the allegations while reviewing a Statement on its face for sufficiency. The only purpose of face review is to determine if the Statement contains sufficient facts to raise an issue which would require a hearing.
The Board has considerable discretion in determining whether the Statement is sufficient on its face. Absent a clear abuse of that discretion this Court will not disturb the Board’s decision. Johnson v. June, Id. Appellant Brown has failed to show on appeal how the Board abused its discretion. Appellant Brown’s only argument appears to be that the Board abused its discretion by failing to grant him a hearing prior to dismissing his Statement. However, the election law requires a hearing only if the Statement is not dismissed for insufficiency. 11 N.T.C. § 51(a)(7)(B); Mustach v. The Navajo Board of Election Supervisors, 5 Nav. R. 115 (1987). We hold that the Navajo Board of Election Supervisors did not abuse its discretion in dismissing Appellant Brown’s complaint for insufficiency.
Appellant Brown then argues that he should have been given a hearing on the merits to determine whether the spoiled ballots should have been included in the final result. However, this argument lacks merit in the face of ample evidence that the spoiled ballots were included in the count twice, and even then, the results showed that Appellant Brown had lost the election. The Board did not abuse its discretion by denying Appellant Brown a hearing to determine this issue. Especially in light of the rule which states that, “Irregularities or misconduct in an election which does not tend to effect the result or impeach the fairness of the result will not be considered.” Johnson v. June, 4 Nav. R. at 82 (1983). With or without the spoiled ballots, Appellant Brown lost the election.
The dismissal of the Statement of Election Contest by the Navajo Board of Election Supervisors is affirmed. The motion of the Navajo Board of Election Supervisors to dismiss the appeal is granted. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502833/ | Austin, Associate Justice
Dissenting.
It should be noted that the order dismissing the appeal in this case was entered several months prior to our decisions in The Navajo Tribe of Indians v. Yellowhorse, Inc., et al, 5 Nav. R. 133 (1987) and Riverview Service Station v. Eddie, 5 Nav. R. 135 (1987). In these latter decisions, we held that the 30 days requirement must be strictly complied with, because the Court desired uniformity under the new Rules of Civil Appellate Procedure.
This case was decided under the old Rules of Appellate Procedure, which has since been superceded by new civil appellate rules. Therefore, my dissent is limited to this case.
I believe that the appeal should have been considered timely in this case, because the blame for the Clerk failing to receive the notice of appeal lies entirely with the U.S. Postal System. The package containing the notice of appeal and all required items was sitting at the post office on the date the appeal time expired, but because of the failure of postal workers to insert notice into the Court’s post office box, the package was not picked up by the Clerk. In a case, such as here, where blame does not lie with the Appellant or the court, then I believe dismissing the appeal on failure to comply with a time deadline is a harsh penalty. For these reasons I dissent in this case. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502836/ | OPINION
Opinion delivered by
Bluehouse, Associate Justice.
The appellant, Benjamin Johnson, is appealing his conviction on January 7,1986, in the Window Rock District Court, of one count of battery, 17 N.T.C. §316 (1977). We initially granted the appeal to decide whether the district court erred in finding that the force used by the defendant in self-defense was not reasonable or necessary, and whether the district court erred in its sentencing of the defendant. At oral arguments, the parties narrowed the appeal only to the issue of sentencing.
This case arises out of an incident between the appellant and one Loretta Shirley, which ended in the appellant striking Ms. Shirley with a stick. At trial, and in a motion for acquittal, the appellant claimed that he was under an immediate threat of severe physical harm, and acted in self-defense. The court, sitting without a jury, denied the motion for acquittal and found the appellant guilty of battery. The court decided that the force used was excessive and that it did not constitute justifiable self-defense under 17 N.T.C. §215(d) (1977). The transcript shows that, at the end of the trial, the court sentenced the appellant to two months probation “in lieu of’ a sentence mandated under 17 N.T.C. §316(b). That section provides for imprisonment for a term not to exceed 180 days; a fine not to exceed $500.00; or both. The court’s Judgment and Mittimus, dated *153January 7, 1986, shows a sentence of 180 days in jail or a $500.00 fine, which were suspended and two months probation imposed.
The appellant cites Navajo Nation v. Jones, 1 Nav. R. 14 (1971), in support of his contention that the court erred in imposing probation prior to his being sentenced under §316(b). Further, the appellant argues that if the district court intended to correct the original sentence in the Judgment and Mittimus, the appellant should have been present for the imposition of the new sentence.
Navajo Nation v. Jones, Id., presents a situation identical to this case. There, the defendant was convicted of assault and battery, and he was sentenced to 90 days probation, notwithstanding the prescribed penalty of a period of labor or, if the individual is unwilling to work, a jail sentence or fine. On appeal, Chief Justice Kirk declared the sentence of probation invalid by holding that the court must first impose a sentence mandated by law before suspending it and substituting probation. Justice Kirk reasoned that a valid sentence is necessary in the event that the defendant violates probation, in which case the law required that the defendant serve the original sentence increased by half. 1 Nav. R. at 15 and 16. Justice Kirk further decided that a sentence not according to law was a form of cruel and unusual punishment, which is prohibited by the Navajo Bill of Rights, 1 N.T.C. §7 (1967). 1 Nav. R. at 18. As Justice Kirk said, “A convicted person is entitled to be sentenced in accordance with the law and not sentenced in accordance with what some individual believes is best for him; anything less is not justice under the law.” Id. at 15. Because probation is not a prescribed sentence under the Navajo Tribal Code, it may not be imposed prior to a sentence.
Although the Navajo Tribal Code has been revised since Jones was decided, the law regarding probation remains substantially the same as in 1971. 17 N.T.C. §224 (1977), gives courts the discretion to suspend a sentence and release the defendant on probation, but it does not allow an original sentence of probation. It is essential that a lawful and clearly-defined sentence be imposed on a defendant in the defendant’s presence in open court. In this case, it appears that the sentence allowed in §316 was imposed outside the presence of the defendant and after he had been sentenced to probation. In addition, the Judgment and Mittimus imposed the maximum jail term or the maximum fine allowed by law, even though the court had noted that the defendant acted to some extent in reasonable self-protection. This appears to contradict 17 N.T.C. §1817(d) (1959), which states, “The penalities listed in Chapter 3 of this title are maximum penalties to be inflicted only in extreme cases.” Even where sentences are suspended in favor of probation, the original sentence determines the penalty to be imposed if a defendant violates probation. 17 N.T.C. §1818(b) (1959). Therefore, district courts should take great care to follow the procedural *154and substantive requirements of the law in determining sentences. The defendant’s conviction is reversed and the charge against the defendant dismissed. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502837/ | OPINION
Opinion delivered by
Bluehouse, Associate Justice.
The Defendant, Wilson Devore Jr., appeals his conviction by the court of Reckless Driving. 14 N.T.C. §455 (1972). The Judgment and Mittimus was signed by the district judge on April 9,1987, and the defendant filed his notice of appeal on May 12, 1987. On May 15, 1987, the Navajo Nation filed a motion opposing appeal arguing that the notice of appeal was not timely filed pursuant to Rule 2(c), Navajo Rules of Appellate Procedure. We agree with the Navajo Nation and dismiss the appeal for lack of jurisdiction.
An appeal of a final judgment or order must be filed with the Supreme Court “within 30 days after the day such judgment or order is rendered. ...” 7 N.T.C. §801(a) (1985). This statute is jurisdictional, and this Court is without jurisdiction unless the appeal is filed within 30 days after the final order is signed by the district judge. The Navajo Tribe of Indians v. Yellowhorse, Inc., et al., 5 Nav. R. 133 (1987); Riverview Service Station v. Eddie, 5 Nav. R. 135 (1987); Viva Rancho Motors, Inc., v. Tully, 5 Nav. R. 145 (1987); Window Rock Mall, Ltd., et al. v. Day IV, 3 Nav. R. 58 (1981). And if mail filing is used, the notice of appeal, a certified copy of the final order, and the filing fee must all be received and stamped as filed by the Supreme Court Clerk within 30 days from the date the final order is *156signed by the district judge. In the Matter of Adoption of: Baby Boy Doe, 5 Nav. R. 141 (1987); Viva Rancho Motors, Inc. v. Tully, 5 Nav. R. 145 (1987).
We interpret Rule 2(c), Navajo Rules of Appellate Procedure1, as being consistent with 7 N.T.C. §801(a) (1985). We have stated before that the language, an appeal must be filed “within thirty calendar days of the date the final judgment or order being appealed was entered in the record by the District Court,” means the appeal time begins to run the day after the district judge signs the final order. The Navajo Tribe of Indians v. Yellowhorse, Inc., 5 Nav. R. 131 (1987); See also In the Matter of Adoption of: Baby Boy Doe, 5 Nav. R. 141 (1987).
The appeal in this case was filed one day late. In the case of Whitehorse v. The Navajo Nation, 4 Nav. R. 55 (1983), the appeal was dismissed for being one day late. There is no doubt that we have declined to review appeals for lack of jurisdiction in the past for lateness. This case fits into that category of cases.
The motion to dismiss the appeal is granted.
. The Navajo Rules of Appellate Procedure still governs criminal appeals to this Court. These rules will remain in effect until new rules of procedure for criminal appeals are adopted. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502839/ | OPINION
Opinion delivered by
Tso, Chief Justice.
This is a probate case, on appeal from an order entered by the Window Rock District Court. The order is dated November 21, 1984, and it was amended twice; the first time on December 27,1984, and the second time on January 11,1985. The final distribution ordered is as follows:
To Yilth Habah Dawes — 98 sheep units from Grazing Permit No. 6802 including three horses and 25 acres of farmland.
To Helen D. Yazzie — 99 sheep units from Grazing Permit No. 6802 including three horses with Brand EEA and ten acres of farmland.
Mrs. Annie Belone, an enrolled member of the Navajo Tribe, and a resident of Ft. Defiance, Arizona died intestate on May 10, 1978, at the age of 90. In its order of November 21, 1984, the district court found that she had been a single woman without any immediate family except for the appellee, Helen D. Yazzie. On October 3, 1978, the Window Rock District Court appointed Chee Dawes, as administrator of the estate. The court dismissed the matter of the estate without prejudice on January 9, 1981, after a hearing on November 13, 1980, in which Chee Dawes failed to appear
*162On October 11,1983, Ms. Yazzie filed an action in the Crownpoint District Court to quiet title to the grazing permit and the two land use permits involved in this case, and that court granted her title to all the permits on January 26, 1984. On July 2, 1984, the Window Rock District Court reopened the probate case on motion by Ms. Dawes, and appointed Ms. Dawes administratrix of the Belone estate as successor to her husband, who had died on January 8,1981. Also on July 2,1984, the Crownpoint District Court vacated its judgment awarding the grazing and land use permits to Ms. Yazzie, so that the entire matter could be decided by the Window Rock District Court. Ms. Yazzie filed notice of her claim to the entire estate, referring to the deceased as her “adoptive mother,” on August 1,1984, and Ms. Dawes submitted her final report on the estate, allotting the grazing and land use permits to herself, on August 15,1984.
The first order by the Window Rock District Court was signed on November 21, 1984. It awarded 97 sheep units from Grazing Permit No. 6802, the brand EEA, and the land use permit for 25 acres of land to Ms. Dawes. 75 sheep units from the same grazing permit and the land use permit for 10 acres were awarded to Ms. Yazzie. After Ms. Yazzie moved for reconsideration on December 19,1984, based on the court’s failure to allocate 25 sheep units of the grazing permit, the court amended its order on December 27,1984. In this modification, the court changed Ms. Dawes’s award to 98 sheep units, including three horses, and awarded Ms. Yazzie 99 sheep units, with three horses, and the brand EEA. The court’s January 11, 1985 order explained that the court had entered the December 27 modification, because the November 21 order had not allocated 25 sheep units, and that Rule 23, Navajo Rules of Civil Procedure, allows the court to reopen a case at any time to correct error. The court’s November 21, 1984 order identified Ms. Yazzie as a “claimant” to the estate. In that order, the court found that Ms. Yazzie sustained her claim, through her own testimony and that of people who know her, that she was raised by the decedent, thus establishing the parent-child and child-parent relationship according to Navajo tradition, and entitling her to a share of the estate. The order is unclear as to what the court meant by referring to Ms. Yazzie as a “claimant,” and whether the court found that the decedent had lawfully adopted Ms. Yazzie under Navajo common law.
On appeal, Ms. Dawes raises the issues of: (1) whether Ms. Yazzie’s August 1,1984 claim to the estate was barred by the statute of limitations; (2) whether the court erred in considering the issue of traditional adoption, because the issue had not been properly pleaded in Ms. Yazzie’s original claim; and (3) whether the court erred in its finding, based on the testimony of an expert witness, that Ms. Yazzie had been adopted by the decedent according to Navajo common law.
*163I. Statute of Limitations
Statutes of limitation fix the time within which an action must be brought. They do not confer any right of action, but simply restrict the period in which the right, otherwise unlimited, can be asserted. Thus, statutes of limitations are not matters of substantive rights, but are available only as defenses.
Under current Navajo law, in force since February, 1980, there is no specific limitation for probate cases, but the limitation for civil action for which no limitation is otherwise prescribed is five years. 7 N.T.C. §602(d); Tribal Council Resolution CF-19-80. Prior to February, 1980, the limitation for civil actions was six years. Tribal Council Resolutions CJ-51-56 and CO-69-58. Rule 1(h), Navajo Rules of Probate Procedure (currently in effect), requires that probate actions must be brought within six years, but this particular rule is based on the pre-1980 limitation for civil actions.
Therefore, there is no doubt that the statute of limitations applies to probate actions, and that the previous limitation of six years would apply to this case. Flowever, the statute of limitations cannot be invoked to bar consideration of this matter. Ms. Belone died on May 19,1978, and the case was filed on October 3,1978, as case no. WR-CV-586-78. The case was dismissed without prejudice in 1981, and reopened for good cause on July 2, 1984. The present action is thus a continuation of the 1978 action, which was brought by Ms. Dawes’s predecessor as administrator of the estate, and that action was within the statute of limitations.
Any heir or other interested party may file an answer to the administrator’s final report at any time prior to the date set for final hearing. Rule 7, Navajo Rules of Probate Procedure. Pursuant to Rule 7, NRPP, Ms. Yazzie had a right to present her claim to the estate prior to the date set for the final hearing. The administrator of an estate must submit a final report within 30 days after his appointment, after which a final hearing is to be scheduled. Rule 7, NRPP. Because Chee Dawes, the original administrator, had not submitted a final report when the case was dismissed without prejudice on January 9,1981, no final hearing had been scheduled. The final hearing did not take place until after the case was reopened on July 2, 1984. Thus, Ms. Yazzie did not have an opportunity to state her claim to the estate until after July 2,1984, and her right to litigate her claim was not cut off by the statute of limitations or by prior action by the court.
II. Proper Pleading of the Adoption Issue
Parties present claims in probate cases by means of pleadings. Rule 2, Navajo Rules of Probate Procedure. These pleadings must closely conform *164to the requirements of Rules 4, 5, and 6 of the Navajo Rules of Civil Procedure. It is essential that they contain a statement of the grounds on which a claim against the estate is made. Where a claim relies on Navajo custom, the custom must be alleged, and the pleading must state generally how that custom supports the claim. If local custom is alleged, and it is different from the custom generally followed throughout the Navajo Nation, the pleading must so state. This is necessary for two reasons: (1) to ensure due process by allowing the adverse party to properly prepare his case, undertake discovery, and determine whether to present his own expert witness on Navajo custom; and (2) to allow the court an opportunity to determine exactly how that custom affects the case.
In this case, Ms. Yazzie based her claim to the estate on the contention that she is the child of the decedent, whom she described as her adoptive mother. Her pleading did not state what Navajo custom supported her claim. Based upon the contents of her answer, one might have assumed that she would attach legal adoption papers to her answer to support her claim. Here, Navajo custom was not alleged until trial. We hold that where, as here, a party’s pleading does not indicate a reliance on Navajo custom, that party may not later offer evidence and seek relief under Navajo custom.
III. Traditional Adoption
Although Ms. Yazzie did not plead Navajo custom and tradition in her answer to the final report, we will still consider the issue of traditional adoption for purposes of guidance. Rule 6(9) of the Navajo Rules of Probate Procedure sets out the order of precedence for distributing the estate of a person who dies intestate. Children of decedent are second in order, brothers and sisters sixth, and nephews and nieces seventh. Ms. Yazzie is the decedent’s niece, and claims to be her adopted daughter. Ms. Dawes’s husband was the decedent’s brother, and thus Ms. Dawes inherited her husband’s interest in the estate upon her husband’s death. The decedent left no other surviving children. Under Rule 6(9), NRPP, if Ms. Yazzie is the decedent’s daughter, she is entitled to the entire estate. If she is not the decedent’s daughter, then the estate will be divided among the decedent’s surviving brothers and sisters, or their heirs.
Rule 6(10), NRPP, states, “If there is shown to be a Navajo custom concerning the distribution of the property, the property will descend according to that custom, even if the custom is in conflict with any other provision of this rule.” This rule follows 8 N.T.C. 52(b),1 as well as 7 N.T.C. *165§204(a),2 which requires courts to apply any laws or customs of the Navajo Nation not prohibited by applicable federal laws. In this case, custom can be used to show either that the decedent had adopted Ms. Yazzie, or that custom supported Ms. Yazzie’s claim to a portion of the estate.
Because established Navajo customs and traditions have the force of law, this Court agrees with the Window Rock District Court in announcing its preference for the term “Navajo common law” rather than “custom,” as that term properly emphasizes the fact that Navajo custom and tradition is law, and more accurately reflects the similarity in the treatment of custom between Navajo and English common law:
The lex non scripta, or unwritten law, includes not only general customs, or the common law properly so called; but also the particular customs of certain parts of the kingdom; and likewise those particular laws, that are by custom observed only in certain courts and jurisdictions.
Blackstone, 1 Commentaries on the Law of England 62 (emphasis in the original), cited in In the Matter of the Estate of Boyd Apachee, 4 Nav. R. 178, 179-81. (Window Rock D. Ct. 1983). Navajo custom and tradition may be shown in several ways: it may be shown through recorded opinions and decisions of the Navajo courts or through learned treatises on the Navajo way; it may be judicially noticed; or it may be established by testimony of expert witnesses who have substantial knowledge of Navajo common law in an area relevant to the issue before the court. Id.; 7 N.T.C. §204 (b).
Where no question arises regarding custom or usage, the court need not avail itself of experts in Navajo culture. Rule 5, Navajo Rules of Evidence. 7 N.T.C. §204(a) requires the court to take judicial notice of Navajo traditional law. Even if custom and tradition are arguably matters of factual evidence, and not simply reading the law as it is printed, it is clear that a court can take judicial notice of customs as adjudicative facts. Thus, if a custom is generally known within the community, or if it is capable of accurate determination by resort to sources whose accuracy cannot reasonably be questioned, it is proven. In the Navajo context, the comment by a Dean of one law school that “judicial notice may only be taken of those facts every damn fool knows” is appropriate. E. Cleary, McCormick on Evidence, §329, (3rd ed. 1984). However, if a district court takes judicial notice of a particular custom as Navajo common law, it must clearly set forth in its order the custom on *166which it is relying, so that the basis for its decision is clear and can be reviewed by this Court. In this case, the district court did not identify the custom it used for its division of the estate, and therefore we conclude that it must not have taken judicial notice of custom for the purpose of applying Navajo common law.
All evidence must be authenticated to the satisfaction of the judge before it is admitted. Rule 30, Navajo Rules of Evidence. Thus, if a party, as in this case, intends to present the testimony of an expert witness to support his claim that a particular custom constitutes Navajo common law, he must satisfy the court that his use of an expert witness is proper. Non-Indian jurisprudence distinguishes between a lay witness and an expert witness. A lay witness can testify only to his first-hand knowledge of the facts. An expert witness can draw inferences from facts that a trier of fact would not be competent to draw. E. Cleary, McCormick on Evidence §13 at 33.
Before testimony of an expert witness is admitted, the court must determine that the witness is qualified because his skill, knowledge or experience in the pertinent field makes it likely that his opinion or inference will aid the trier of fact in the search for truth. The expert’s knowledge may be derived from reading, from practice, or, as is more commonly the case, from both. Further, an expert’s testimony is admissible only if the knowledge from which he draws his inferences is so specialized as to be beyond the understanding of laymen, although some jurisdictions will admit expert testimony concerning matters about which the jurors may have general knowledge, if the expert opinion would still aid their comprehension of the issue. A court may decide not to admit expert testimony if it believes that the state of the pertinent area of knowledge does not permit a reasonable opinion to be asserted even by an expert. It may also decline to admit such testimony if the court believes that an opinion based upon particular facts cannot be grounded on those facts. E. Cleary, McCormick on Evidence, §13 at 33, 34.
Apart from Rule 30, the Navajo Rules of Evidence lacks specific rules regarding expert witness qualifications. We stated in George v. Navajo Nation, et al., 2 Nav. R. 1 (1979), that:
The qualifying of expert witnesses is one area of trial procedure which is left to the sound discretion of the trial judge.
There is no substitute for first-hand observation and examination of the qualification of such experts. The [Supreme Court] must exercise considerable restraint in this area and must resist the temptation to jump in and substitute its own opinion for the opinion of the trial judge or reverse his judgment on this basis.
Given the justifiable reluctance on our part to outguess the District Court on matters of this nature, we must, however, exercise our power of review and determine whether there is some reasonable basis behind the judge’s exclusion of. . .witnesses offered as experts....
Id. at 6.
*167Within the bounds of that case, we now set forth the following general guidelines within which district court judges may exercise their discretion to admit or exclude expert testimony. The trial judge must satisfy himself that an expert witness on Navajo custom is in fact an expert in this area. A witness’s qualifications on custom may come from reading or practice, or from other evidence of a witness’s understanding of custom. In the latter category, a witness may be qualified based upon his familiarity with Navajo traditions acquired by oral education, or his adherence to a traditional way of life, or through his long-term interest in deepening his knowledge of Navajo custom, or through his status within the community as a person with a special knowledge of custom. After the court determines that a witness is qualified as an expert, the witness can draw inferences from facts that the trier of fact would not be competent to draw.
In cases where Navajo custom is disputed, and might determine the outcome, the court should hold an informal pre-trial conference with two or three expert witnesses as appointed by the court, as authorized in Rule 24(a), Navajo Rules of Evidence. The parties and their counsels may attend, but their participation should be limited to asking questions to clarify the expert witnesses’ conclusions. The expert witnesses may discuss among themselves how Navajo custom should be applied in the case before the court, until they arrive at a consensus. This is the way Navajos have traditionally clarified their understanding of customs, and it is more appropriate than the adversarial system where each party tries to interpret custom to benefit its own interests.
Within these guidelines, the court can determine admissibility of expert testimony within its discretion. This Court cannot add its own specific standards by which a witness will be qualified as an expert in matters of Navajo custom beyond these guides. However, where, the outcome of a case on appeal depends on a question of Navajo common law, that was established in the proceedings below through an expert witness, this Court must review, as a matter of law, whether the district court followed the proper procedure in determining the expert witness’s qualifications as regards the custom or tradition applicable to the specific circumstances and locale involved. Therefore, where expert testimony is admitted, the record must show clearly the basis of the expert witness’s specialized knowledge, and why it is particularly relevant to the question before the court.
In this case, the court found that Ms. Yazzie sustained her claim “by her own testimony as well as by those who knew her.” In the Matter of the Estate of Annie Belone, No. WR-CV-586-78, Order dated November 21, 1984 (Window Rock District Court). Ms. Yazzie states in her opposing brief that the court “heard the testimony of an expert witness and took judicial notice of matters testified to concerning Navajo custom adoption and inheritance.” Brief for the Appellee at 4. Ms. Dawes’s brief states that Ms. Yazzie introduced the testimony of an expert witness, but that the testimony did not *168cover the specific circumstances of this case. Brief for the Appellant at 11,12. Because the parties did not provide a transcript of the expert witness’s testimony to this Court, and because the district court’s orders did not mention the expert witness, there is nothing in the record to show that the district court (1) found that the expert witness was qualified, (2) found that the witness’s testimony was directly relevant to the issues being litigated, or (3) examined the witness’s qualifications to draw inferences from the specific facts of this case. Without such findings, the record contains no evidence which shows that Ms. Yazzie was the decedent’s adopted daughter. Therefore, Ms. Yazzie cannot base her claim to the decedent’s estate on a theory of traditional adoption.
In her Response to Final Accounting and Response and Objection to Administratrix’s Motion to Dismiss Claim Against the Estate, filed with the district court, Ms. Yazzie also argues that, even apart from her child-parent relationship with the decedent, she is entitled to a portion of the estate through her father, Willie Dawes, who was the decedent’s brother. However, Willie Dawes died before the decedent, as did the decedent’s husband and son. Therefore, Ms. Yazzie’s claim under this argument is without merit. The decedent was survived by one brother, Chee Dawes, who was Ms. Dawes’s husband, and two sisters, Nettie Rose Dawes and Maggie Dawes. According to Rule 6(9), NRPP, these three take precedence in inheritance over Ms. Yazzie as the decedent’s niece. Ms. Yazzie has established no grounds that would justify disregarding that rule.
Finally, Ms. Yazzie argues that the district court has equitable powers to distribute the decedent’s grazing and land use permits in a fair and just manner. However, in the absence of clear indication that the decedent intended to leave all or part of her estate to Ms. Yazzie, the district court’s equitable powers do not allow it to ignore the clear and unambiguous directions contained in Rule 6, NRPP.
The findings of the lower court do not support the award of property to Helen Yazzie. The court’s conclusion that Ms. Yazzie was adopted according to Navajo common law is not supported by the record. We hold that the district court erred in its division and distribution of property in this case.
The heirs are clearly the one brother and two sisters. The portion of the estate awarded to Chee Dawes must be further probated to his surviving issue, and the portion awarded to Maggie Dawes must likewise be probated to her issue. The decision of the district court in this case is reversed and the matter is remanded to the Window Rock District court for distribution of the decedent’s estate consistent with this Opinion.
. “In the determination of heirs the court shall apply the custom of the Tribe as to inheritance if such custom is proved. Otherwise the court shall apply state law in deciding what relatives of *165the decedent ate entitled to be his heirs.” However, in Sells v. Sells, 5 Nav. R. 104 (1986), this Court held that Navajo courts must follow Navajo case law wherever possible, and may apply state law only to decide legal issues of first impression.
. In Sells v. Sells, Id., we interpreted the Judicial Reform Act of 1985, 7 N.T.C. $204, to make the application of state law discretionary with the courts, assuming no Navajo case law is direcdy on point. Courts may “adopt and develop law that best meets the needs of the Navajo people.” Id. at 108. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502841/ | OPINION
Opinion delivered by
Bluehouse, Associate Justice.
Wilson H. Benally has appealed the Crownpoint District Court’s distribution of the estate of his wife, Mae D. Benally. Ms. Benally, a member of the Navajo Tribe, died on January 31, 1981. Her last place of residence was Naschitti, New Mexico, which is within the exterior boundaries of the Navajo Nation. She left behind a son from a previous marriage and a son and four daughters from her most recent marriage. The husband is Wilson Benally, who is the appellant in this case. The son from a previous marriage is Raymond Denetclaw, who is the appellee.
The following property is at issue on appeal:
1. Grazing Permit No. 14-1476 for 70 sheep units issued on June 17, 1976 to Mae D. Benally and Wilson Benally. Mae D. Benally had inherited 11 sheep units, included in this permit, from her father in 1976. In the Matter of the Estate of Clarence Denetclaw, No. WR-C-PB-486-75, Final Probate Decree (Window Rock D. Ct., February 19, 1976).
2. A land use permit issued to “May D. Benally” and approved July 9, 1953, for 9.5 acres of agricultural land, described as plot A-93. The second page of the permit designates “Raymond, Harry, Virginia Benally” as *175beneficiaries upon Mae D. Benally’s death. Land Use Permit, p. 2. This page is dated February 16, 1953. “Raymond Benally” is Raymond Denetclaw. Harry Benally is the son of Mae and Wilson Benally. Virginia Benally is the eldest daughter of Mae and Wilson Benally. She is now Virginia Winters.
3. One of six strings of coral beads removed from Ms. Benally’s set of jewelry after her death.
On November 30, 1983, the Crownpoint District Court appointed Raymond Denetclaw as administrator of the estate. The district court received Mr. Denetclaw’s final report on April 18, 1984. This report stated that the property “passes to the heirs,” i.e., the surviving husband and six children, but did not suggest how the property was to be distributed. Final Report at 4.
On August 3, 1984, Raymond Denetclaw submitted an “Administrator’s Argument concerning Distribution of the Estate,” in which he stated that 11 sheep units from Grazing Permit No. 14-14-76 were Mae D. Benally’s separate property, and that the rest of the estate was the community property of Mae and Wilson Benally. Administrator’s Argument at 1. Mr. Denetclaw requested the 11 sheep units for himself, arguing that “In Navajo custom, the oldest child usually have more rights than the younger siblings.” Administrator’s Argument at 2, 3. He also argued that Land Use Permit No. A-93 should be divided between the three beneficiaries designated by Mae D. Benally on page 2 of the permit. Finally, he alleged that the coral beads intended for Mae D. Benally’s children were improperly in the possession of Ruth Johnson, Mae D. Benally’s sister.
On May 14,1985, Wilson Benally submitted an “Answer and Counter-Proposal to Distribution Stipulation.” He conceded that the 11 sheep units inherited by Mae D. Benally should be awarded to Raymond Denetclaw, but argued that he himself should receive the other 59 sheep units. He also argued that the land governed by the land use permit for plot A-93 was “relatively used by the responding parties,” and that he should be named “permanent administrator” for all the heirs. Answer at 1. Wilson Benally’s answer did not suggest how the beads should be distributed.
The Crownpoint District Court held a hearing on July 18, 1985, and issued a decree distributing the estate on August 7,1985. The court noted that Harry Benally was not present at the hearing, and found: (1) that Mae D. Benally’s heirs were her husband and six children; and (2) that Raymond Denetclaw was entitled to one string of beads, which had improperly been given to Ruth Johnson. Acting “in accordance with Wilson Benally’s oral stipulation in court,” Probate Decree at 2, the court awarded 10 sheep units each to Wilson Benally and his four daughters, 11 sheep units to Raymond Denetclaw, and 9 sheep units to Harry Benally. The court further ordered Harry Benally’s 9 sheep units combined with Raymond Denetclaw’s 11, and a grazing permit of 20 sheep units issued to Raymond Denetclaw. The court *176divided the land use permit for plot A-93 between Raymond Denetclaw, Harry Benally, and Virginia Winters, as proposed by Raymond Denetclaw. Finally, the court ordered one string of coral beads returned to Raymond Denetclaw. Wilson Benally submitted a motion for reconsideration on September 6,1985, which the district court denied on September 13,1985. Mr. Benally filed a timely notice of appeal on September 6,1985.
This Court has determined that probable cause exists to grant the appeal. In his Brief on Appeal, Mr. Benally requested a trial de novo. However, trial de novo has been eliminated by the Judicial Reform Act of 1985; this act limits appellate review to issues of law. 7 N.T.C. §803 (Supp. 1986). For the same reason, this Court may not consider evidence, not introduced at trial in the district court, to which Mr. Benally refers in his brief. This case involves the proper application of Navajo Probate Rules.
I. Division of Estates Under the Navajo Tribal Code
A. NAVAJO COMMON LAW
Navajo law governing inheritance requires that:
In the determination of heirs the court shall apply the custom of the Tribe as to inheritance if such custom is proved. Otherwise, the court shall apply state law in deciding what relatives of the decedent are entitled to be his heirs.
8 N.T.C. §2(b) (1977). In In the Matter of the Estate of Annie Belone, 5 Nav. R. 161 (1987), this Court set forth the procedure for applying Navajo custom in legal proceedings. In the pleadings, “[w]here a claim relies on Navajo custom, the custom must be alleged, and the pleading must state generally how that custom supports the claim.” Id. at 164. At trial, a party can prove custom through previous case law, learned treatises, or expert testimony. Id. at 165. The court may also judicially notice a custom. Id. at 165. In the latter case, the court “must clearly set forth in its order the custom on which it is relying. . . " Id. at 165, 166.
In his pleadings, Wilson Benally did not allege any JNavajo custom to support his proposed stipulation. Raymond Denetclaw alleged only that “[i]n the Navajo custom, the oldest child usually have more rights than the younger siblings.” “Administrator’s Argument,” dated August 3,1984, at 3. Mr. Denetclaw did not argue how this “custom” supported his requested division of property. The district court’s order does not mention Navajo custom. The record does not support a division of the estate according to Navajo common law. Therefore, the division must follow state law as applied in Navajo case law and the Navajo Rules of Probate Procedure.1
*177B. STATE LAW UNDER THE RULES OF PROBATE PROCEDURE
Whenever a decedent is survived by a spouse, the court probating the estate must first determine what part of the estate is community property, and what part was the decedent’s separate property. In doing so, the court must apply the laws of the state in which the decedent resided, interpreted in light of the Navajo Rules of Probate Procedure and Navajo case law. 8 N.T.C. §2(b) (1977).2
9 N.T.C. §205 (1977) states that:
All property acquired by either husband or wife during the marriage, except that which is acquired by gift, devise or descent, or earned by the wife and her minor children while she lives separate and apart from her husband, is the community property of the husband and wife.
See also Rule 5, NRPP. Property acquired during the marriage is presumed to be community property unless shown to be separate. Mitchell v. Mitchell, 104 N.M. 205, 719 P.2d 432, 439 (1986), cert. denied, 104 N.M. 205, 719 P.2d 60 (1986). Inherited property is separate, even if acquired during the marriage. Willie v. Willie, 4 Nav. R. 31, 32 (1983); Portillo v. Shappie, 97 N.M. 59, 636 P.2d 878, 880 (1981). Separate property comingled with community property is still separate if it can be clearly traced and identified. Mitchell, 719 P.2d at 439.
On the death of a spouse, one-half of the community property belongs to the surviving spouse, and cannot be willed away. Rule 5, NRPP. In New Mexico, if the decedent did not leave a will, the decedent’s half of the community property also goes to the surviving spouse. Rule 6(3)(c), NRPP. One-fourth of the decedent’s separate property goes to the surviving spouse, and the remaining three-fourths goes to the decedent’s children. Id..
C. THE GRAZING PERMIT
Of the 70 sheep units in Grazing Permit No. 14-14-76, Raymond Denetclaw introduced evidence showing that Mae D. Benally had inherited 11 sheep units, which were thus her separate property. One-fourth of these, or three sheep units, belong to Wilson Benally. Adding the 59 sheep units that are community property, a total of 62 sheep units must go to Mr. Benally. The remaining eight must be divided among the remaining six heirs. Thus, each of Ms. Benally’s children is entitled to lVá sheep units. However, in Grazing Distria No. 7, grazing permits may not be subdivided into parts of less than ten sheep units. 3 N.T.C. §785(3) (1977). The Navajo Reservation Grazing Handbook, issued by the Resources Committee of the Navajo Tribal Council to regulate the distria grazing committee’s issuance of grazing per*178mits, contains a similar provision. Navajo Reservation Grazing Handbook at 24. Thus, according to the Grazing Handbook, the eight sheep units cannot be distributed strictly according to the Rules of Probate Procedure. An award of lVs sheep units is clearly incompatible with Navajo law governing the grazing permit system. See Navajo Reservation Grazing Handbook (1957). A distribution consistent with the Navajo grazing permit system must be considered.
In accordance with Wilson Benally’s stipulation, the district court ordered a roughly equal division of the grazing permit among all seven heirs. It is clear that Mr. Benally may make a gift of any part of the estate to which he is entitled. However, such a stipulation as Mr. Benally’s could have been made for many reasons, including duress and his counsel’s ignorance of Mr. Benally’s legal rights. Before the distribution in the stipulation is considered as a gift, Mr. Benally must have been aware of his legal right to 62 sheep units. The record does not show that Mr. Benally knew he was entitled to 62 sheep units. Therefore, the stipulation is unenforceable, and it is inconsistent with Navajo probate law.
D. THE LAND USE PERMIT
The first page of the land use permit for plot A-93 is stamped as having been approved on July 9,1953. The second page, containing the assignment upon Mae D. Benally’s death to three of her children, is dated February 16, 1953. Because two of these three children are also children of Wilson Benally, this court must assume, absent contrary evidence, that Mae and Wilson Benally were married when the land use permit was approved, and that the permit was therefore acquired during the marriage. Thus, unless the permit can be identified as the separate property of Mae D. Benally, the presumption according to law is that it is community property. Mitchell v. Mitchell, supra, 719 P.2d at 439. The status of the land use permit requires additional findings of fact.
Under New Mexico law, if a decedent leaves a will that fails to provide for one or more of his children, whether born before or after the will was executed, the omitted child receives a share in the estate equal in value to that which he would have received under the intestate succession law. N.M. Stat. Ann. §45-2-302 (1978).3 The provisions of this section can be defeated in *179several ways; none of which has been alleged in this case. Id. It is not clear from the record whether Ms. Benally’s listing of beneficiaries to the land use permit is testamentary in nature. If the land use permit is testamentary, then Ms. Benally may will one-half of the land use permit as her share of community property; or the entire land use permit if it is her separate property. However, the court must be careful to see that pretermitted heirs are protected.
The district court must also determine whether Ms. Benally’s listing of beneficiaries to the land use permit is like an assignment of beneficiaries in an insurance policy. If that is the case, the portion of the permit that is not community property may be divided among the beneficiaries listed.
II. Land and Grazing Permits in Navajo Law
Land use and grazing permits within the Navajo Nation are not “owned” in the same sense that property can be owned in fee simple under the Anglo-American legal system. Although land use and grazing permits are sold or passed through inheritance, all transfers are subject to regulation by district land boards and grazing committees. See, e.g., 3 N.T.C. §237(1) (supp. 1986); 3 N.T.C. §§708(a), 784 (1977). In allotting permits, these committees must consider, among other things, the policies of insuring (1) that tracts assigned by land use and grazing permits are large enough to be economically viable, and (2) that land is put to its most beneficial use. See 3 N.T.C. §§233 (2), 237(2), 237(6) (Supp. 1986); 3 N.T.C. §§217(a), 703(3) (1977). See also, In the Matter of the Estate of Charley Nez Wauneka, Sr., 5 Nav. R. 79 (1986). Further, under Navajo common law, a person can only maintain a “right” to productive land if he is personally involved in its beneficial use. See Wauneka, Id. at 83, 84.
Title 3 of the Navajo Tribal Code gives courts discretion in the division of estates, so that tracts of land are kept intact and so that the most beneficial use of the land is encouraged. Tribal courts have authority to order that land use permits be transferred to the decedent’s “most logical heir.” 3 N.T.C. §785(1) (1977).4 This Court has held that Navajo land policy, which opposes dividing the land into ever smaller parcels, precludes the literal application of intestate succession laws under some circumstances. Wauneka, Id. at 83. Courts probating land use and grazing permits must avoid splitting up the permits wherever possible, so long as the rights of all the heirs are protected. Id. at 83.
Within Navajo common law, the primary means of achieving this goal of Navajo land policy has been the customary trust. Id. at 82. Land placed in *180a customary trust is held for the benefit of the family unit. Id. Courts must appoint as trustees those who are in the best position to encourage beneficial use of the land. Id. at 82, 84. All individuals involved in the trust have an interest in the land, and have the right to use it as long as their use is not contrary to the interests of another member of the trust. However, those who make their living from the land should have day-to-day responsibility for its management. Id. at 83.
The most important limitation on a court’s use of the customary trust in probating an estate is that the members of the trust must be able to cooperate if the trust is to be viable. Id. at 82. In Wauneka, for example, we determined that the heirs would be unable to cooperate harmoniously in managing a customary trust. Id. However, one heir had worked the land for most of his life, and depended on the land for his livelihood, whereas the other heirs had not involved themselves in farming, and intended to sell their interests in the land. Id. at 83. Thus, a court may include in a customary trust only those who the court determines will be able to cooperate in the trust’s management. Other heirs must be compensated from the estate in the approximate value of their share in the trust property.
The customary trust is so called because, in Navajo custom, land is held and managed for the benefit of the clan and the family. The aim of a customary trust is to keep tracts of land and grazing permits intact and in the family. Therefore, land and grazing permits held in customary trust should descend in somewhat the same way as property held in joint tenancy with right of survivorship. That is, once a customary trust is established, those involved in the trust cannot normally devise their interests in the land or grazing permits to their heirs, as that would cause the rights to be split up among more and more owners. Rather, the permits remain intact, and the last surviving member of the original trust will end up owning the entire permit. However, common-law requirements governing the creation and destruction of joint tenancies do not apply to the customary trust, which is a product of Navajo common law.
Regardless of whether the customary trust or another means of distribution is used, a court probating land use and grazing permits held and used by a family unit must consider the pattern of land use and the relationships within the family in dividing the estate. If the court establishes a customary trust, it must consider these factors in deciding whom to include in the trust and whom to compensate with other property. Interests in productive land cannot simply be divided up according to the intestate statutes, as with other assets.
*181III. Instructions on Remand
A. THE LAND USE AND GRAZING PERMITS
The proper distribution of Ms. Benally’s estate depends in part on questions of fact not resolved in the record, and we must therefore partially reverse the district court and remand for a new hearing. The laws of intestate succession entitle each of Ms. Benally’s children to an interest equal to lVs sheep units of the grazing permits. Each of the children is entitled to an interest equal to \ or %2 of the land use permit, depending upon whether the land use permit is found to be community or separate property. Wilson Benally is entitled to the remainder of the permits. However, the court must keep these permits intact to the extent possible.
Because all of the heirs have interests in both permits, the court must determine which of the heirs are presently using the land, and which of them can cooperate in managing the land and utilizing the grazing permit. The court may then consider these options: (1) a customary trust with right of survivor-ship under the laws of the state where the property is located; (3) a tenancy in common, with restrictions on transfer of interests to non-family-members and provisions prohibiting later division and distribution of the land; (4) awarding one or both permits to the most logical heir who can make the most beneficial use of the permits; or (5) dividing one or both of the permits, but only if the resulting division, when combined with other land and grazing permits owned by the awardee in the same district, are large enough to be productive and economically viable.
To the extent that the heirs can cooperate, this Court prefers a customary trust for the benefit of the family. Those heirs who cannot cooperate must be compensated with assets from the estate in the approximate value of their interests in the land use and grazing permits. However, even if such compensation is impossible, Navajo land policy still precludes the piecemeal division of productive land. Further, those heirs who have not maintained a connection with the land may be included as beneficiaries of a customary trust, or may receive other assets as compensation, but they may not receive a separate land use or grazing permit from the estate.
B. THE CORAL BEADS
The decedent’s parents and siblings are entitled to one item of the decedent’s personal effects, as selected by the family. Rule 6(1), NRPR The district court found that, at the time of Mae D. Benally’s death, six strings of her beads were set aside by the family for her children. Although Raymond Denetclaw is not entitled to the beads under the letter of Rule 6(1), the district court’s ruling is in accordance both with the spirit of Rule 6(1) and with *182Navajo custom, whereby family members meet to discuss a person’s property matters after that person’s death. See In the Matter of the Estate of Ray Lee, 1 Nav. R. 27, 30 (1971). Therefore, the district court’s order that Ruth Johnson must return the string of coral beads to Raymond Denetclaw is affirmed.
Affirmed in part and reversed and remanded in part.
. In Sells v. Sells, 5 Nav. R. 104 (1986), we determined that courts must apply Navajo case law whenever possible, relying on state law to resolve only questions of first impression. Id. at 107, 108.
. This assumes that no federal law or Navajo statute applies. 7 N.T.C. §204 (Supp. 1986). If Navajo case law interprets a state law, that interpretation becomes Navajo common law, and as such, it takes precedence over state case law, or even over later changes in state statutes. Id.
. §45-2-302 is titled “Pretermitted children,” and provides in part:
A. If a testator fails to name or provide in his will for any of his children bom or adopted before or after the execution of his will, the omitted child or his issue receives a share in the estate in value to that which he would have received if the testator had died intestate unless.
1. it appears from the will that the omission was intentional;
2. when the will was executed, the testator had one or more children and devised substantially all his estate to the other parent of the omitted child; or
3. the testator provided for the child by transfer outside the will and the intent that the transfer be in lieu or a testamentary provision is shown by statements of the testator or from the amount of the transfer or other evidence.
.25C.ER. (1987) does not specifically regulate intestate succession for grazing and land use permits. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502842/ | OPINION
Opinion delivered by
Tso, Chief Justice.
This libel case is on appeal from a final judgment entered by the Crown-point District Court on February 11,1987. On October 27,1986, a judgment on the issue of liability was entered against the defendant, Marshall Tome, for failure to comply with the discovery rules and the court’s orders compelling discovery. The court also awarded $1,020.00 in attorney’s fees to plaintiff, Donna Chavez. The issue of damages was tried before a jury, which awarded Chavez $10,000.00 in damages. The court further ordered Tome to print a retraction in his newspaper, The Navajo Nation Enquiry. Tome is appealing the district court’s October 27,1986 finding of liability and award of attorney’s fees, and the court’s February 11,1987 final judgment awarding actual and punitive damages, and order to print a retraction.
Marshall Tome, doing business as The Navajo Nation Enquiry (Enquiry), published a series of articles about Donna Chavez during 1985 and 1986. The focus of the articles was a case in which Chavez, an attorney in the Navajo Nation Department of Justice, represented the Navajo Nation. Chavez filed a complaint for libel against Tome on April 1,1986, claiming that Tome had recklessly and maliciously defamed her by publishing a variety of false statements. The statements in question were published in August, September, and November of 1985, and they accused Chavez of lying to a judge, and bribing a judge to obtain favorable rulings. It was also reported in the *184March 1986 issue of The Navajo Nation Enquiry that Chavez had been “ousted by the Ute Tribe” for causing problems throughout the community. Chavez sought monetary damages and a retraction of the alleged defamatory statements.
Tome retained Margaret Wilson as counsel, and he filed an answer and a demand for a jury trial on May 5,1986. On July 25,1986, Tome was served with a Notice of Deposition Duces Tecum through his attorney, which requested that lome produce thirty-six categories of documents at the deposition scheduled for August 19,1986. Included in the request for documents was the policies and procedures for The Navajo Nation Enquiry. On August 4,1986, Chavez filed a motion to personally serve Tome with a Subpoena Duces Tecum to assure that the documents would be available at the deposition. On August 6,1986, the court denied the motion by ordering that service of the Notice of Deposition Duces Tecum on Tome’s counsel was sufficient to assure that all requested documents would be produced by Tome at the deposition.
The deposition was held on August 19, 1986, in Gallup, New Mexico. Tome was represented at the deposition by Earl Waits, Ms. Wilson’s associate. Waits stated that he was appearing with Tome for the deposition only and that Tome would be “retaining other counsel to proceed in this matter.” (Tome Deposition at p. 5.) However, Ms. Wilson would continue to represent Tome until substitute counsel was obtained.
Tome appeared at the deposition without any of the documents requested in the Notice of Deposition Duces Tecum. The record does not show that Tome filed any motions for protective orders, nor any objections, at anytime regarding the documents. When asked why he did not bring the requested material to the deposition, Tome stated that he had other things to do which he thought were more important than coming to the deposition. (Tome Deposition at p. 26.) A three hour recess was taken to allow Tome to go to his office in Window Rock and get the documents. Tome returned from Window Rock with only the back issues of the Navajo Nation Enquiry stating that his brother had taken the rest of the documents to another location. (Tome Deposition at p. 100.)
On September 8, 1986, Ms. Wilson moved to withdraw as counsel for Tome. Attached to the motion was a letter written by Ms. Wilson’s doctor, dated August 14,1986, which stated that Ms. Wilson was advised to stop working at this time so that she could recover from injuries. The letter, we presume, was written to someone other than the district court.1 The district *185court denied the motion on September 17,1986, finding that the motion did not comply with Rule 27 of the Navajo Rules of Civil Procedure. Rule 27 requires that new counsel be named before a motion to withdraw can be granted.2 The motion filed by Ms. Wilson did not name new counsel. In denying the motion, the court directed Ms. Wilson to advise Tome to act quickly and obtain new counsel. The court then allowed Ms. Wilson two weeks to file another motion to withdraw if Tome did not secure counsel. Ms. Wilson did not file another motion to withdraw.
On September 17,1986, the court also found that Tome had previously been ordered to produce certain discovery materials which Tome had not produced and made available to Chavez. The court was referring to its order of August 6,1986. The court ordered Tome to make those materials available to Chavez within fifteen days.
On September 22,1986, Chavez filed a “Motion To Compel Production of Documents,” which the court granted on September 24, 1986. Tome was ordered to produce the documents requested in the Notice of Deposition Duces Tecum by October 1, 1986, otherwise “judgment shall be entered against him upon the application of plaintiff.” Order of September 24,1986.
Also on September 22, 1986, Chavez filed a “Motion To Compel Disclosure Of Alleged Sources And To Compel Answers To Questions Asked At Deposition.” This motion was granted on September 24, 1986. In the Order Compelling Discovery, the court ordered Tome to disclose the sources for each article concerning Chavez in the Enquiry; the financial and business aspects of the Enquiry, and to provide Chavez with a witness list. The court further warned Tome that if the orders were not complied with by October 7,1986, “judgment shall be entered against him on application of plaintiff.” Order of September 24,1986.
On October 9,1986, Chavez filed an “Application for Judgment” based upon Tome’s failure to comply with the September 17 and 24 orders. On October 27,1986, the district court entered judgment for Chavez on the issue of liability, and the court awarded Chavez $1,020.00 in attorney’s fees. The attorney’s fees were for the costs of the motions to compel discovery. The court found that Tome had not complied with four of its orders: the order of August 6,1986, ordering Tome to produce documents; the order of September 17,1986, compelling Tome to produce documents; and the order of September 24,1986, compelling discovery of information disclosed by Tome at his deposition. The court also found that Tome had not made any motions for reconsideration, or other objections to the orders to compel production of the documents or to compel discovery. Neither had Tome filed a motion *186for a protective order regarding the Notice of Deposition Duces Tecum.
On November 6,1986, Tome secured new counsel and made a motion to set aside the October 27, 1986 judgment. Tome claimed that his prior counsel had inadequately represented him and he argued that that was sufficient grounds for setting aside a judgment. The motion was denied and on January 9, 1987, a jury trial was held on the issue of damages. The jury found that Chavez had suffered actual damages of $8,823.87. The damages were for mental suffering, emotional distress, and loss of reputation. An additional $1,176.13 was awarded as punitive damages. Aside from the jury’s monetary award, the court ordered Tome to print a retraction on the front page of three consecutive issues of his newspaper, The Navajo Nation Enquiry.
I. Failure to Comply with Discovery
A.
On October 27,1986, the district court entered judgment against Tome and awarded Chavez attorney’s fees, after finding that Tome had consistently failed to comply with the discovery rules and the court’s orders compelling discovery. Tome argues that his failure to comply with the rules and orders was due to the incapacity of his counsel, Ms. Wilson, and that it is unjust to punish him, by entering judgment against him, for the failings of his counsel. Tome further argued that he was denied due process because the notices of the discovery orders were sent to his counsel and not to him personally. The Court is unpersuaded by these arguments.
The district judge has the discretion to impose sanctions, including entry of judgment against a defendant for failure to obey discovery orders. Four Corners Auto Sales, Inc., et al. v. Begay, 4 Nav. R. 100 (1983). Our review on appeal is thus limited to deciding whether the district judge abused her discretion in entering judgment and attorney’s fees against Tome. Absent a clear abuse of discretion, this Court will not disagree with a district judge’s decision. In the Matter of Contempt of: Arnold Sells, 5 Nav. R. 37 (1985).
Entry of judgment against Tome is not an abuse of discretion, if the judge found that Tome flagrantly disregarded the court’s orders compelling discovery, or if Tome flagrantly abused the discovery process. Four Corners Auto Sales, 4 Nav. R. at 103. Entry of judgment is also proper if Tome willfully, or in bad faith, failed to comply with the court’s discovery orders. A Notice of Deposition Duces Tecum, which requested documents, was served upon Tome, through his counsel Ms. Wilson, shortly after it was filed on July 25, 1986. Ms. Wilson had not attempted withdrawal at the time of service, *187thereby Chavez rightfully served the notice on Tome’s counsel. At least three weeks elapsed between service and the deposition date of August 19,1986. During these three weeks Tome did not file any objections to the request for discovery of documents. A party served with a Notice of Deposition Duces Tecum has the burden to object, otherwise lack of action will be construed as a consent to comply with the discovery request. An unchallenged discovery request has the effect of a court order. Tome was ably represented and his failure to motion for a protective order, or otherwise object, means he consented to produce documents requested in the Notice of Deposition Duces Tecum. After such consent, a failure to comply with the discovery request, without adequate excuse, can be sufficient for a finding of willfulness to support entry of judgment.
Tome appeared at the deposition without the documents. During questioning, Tome admitted that he had received the Notice of Deposition Duces Tecum from his attorney several days prior to the deposition date. (Tome Deposition at p. 26.) When asked why he had not brought the documents, and specifically the policies and procedures, he responded that he had other things to do which he considered more important than coming to the deposition. Nonetheless, a three hour recess was taken so Tome could cure his noncompliance by getting the documénts from his office in Window Rock. However, Tome returned without the documents, most notably the policies and procedures, despite his earlier testimony that they were located in Window Rock. (Tome Deposition at p. 34.)
The district judge could rightfully conclude from these facts that Tome’s intent from the beginning was not to cooperate with discovery. Obviously, Tome was aware of the type of documents that he had to produce at the deposition, and he had sufficient time to gather those documents. Otherwise, Tome had sufficient time to file a motion for a protective order or to file an objection to Chavez’s request for documents. The record is clear that Tome personally knew he was to produce certain documents, and he consented to produce those documents, yet he deliberately disregarded the discovery request by failing to produce the documents.3 His statement, that he had other important things to do rather than come to the deposition, is another indication of his willful refusal to abide by the discovery rules.
The district judge must consider all the circumstances of the case to determine whether the defendant acted flagrantly or willfully in disregarding the discovery process, or in disobeying the court’s discovery orders. Tome’s refusal to produce documents at his deposition was not the only evidence considered by the district judge. The record shows that Tome failed to obey *188court ordered discovery on two occasions and he disobeyed two subsequent orders compelling discovery. All these orders were served upon Tome through his counsel of record, Ms. Wilson. The transcript of Tome’s August 19,1986 deposition is replete with evidence showing evasive testimony.
The two orders compelling discovery, that were entered on September 24, 1986, are of particular significance. One of these orders compelled production of the same documents requested in the Notice of Deposition Duces Tecum filed on July 25,1986. The record shows that the order compelling production of documents was the fourth request made by Chavez for those documents. No party to a lawsuit should have to undergo unnecessary expense and effort in an attempt to consistently discover the same materials while the other party simply ignores the discovery orders. At some point the judge must impose sanctions to insure that the court’s rules and orders are complied with and that the party requesting discovery is not unduly prejudiced. The judge must exercise control and management over the cases to insure that cases move in a timely and orderly fashion. Otherwise recalcitrant parties only impede the timely and orderly administration of justice, and in the process deprive other litigants in other cases of scarce judicial resources. In addition, both orders compelling discovery warned Tome that his failure to comply by a certain date would result in entry of judgment for Chavez. Again he ignored this warning and chose not to comply with the court’s orders.
After a review of the facts and the transcript of the deposition, this Court agrees that Tome flagrantly and willfully disregarded the discovery process and the district court’s orders. We hold that the district court did not abuse its discretion by entering judgment on liability against Tome under these circumstances.
B.
Tome has also raised the incapacity of his counsel as a reason for his disregard of the discovery process and for disobeying the court’s orders. A party cannot avoid the consequences of the acts or omissions of his counsel. See Tracey v. Heredia, 4 Nav. R. 149 (Window Rock D. Ct. 1983); Sutherland v. ITT Continental Baking Co., Inc., 710 F. 2d 473 (8th Cir. 1983). The incapacity of counsel will not allow a party to escape the consequences of having freely selected that particular counsel. A party to a suit has a responsibility to maintain contact with his counsel and assure that his case is being handled properly. The court cannot be made the watchdog of the attorney-client relationship to assure that the client has made a good choice as to his attorney. This would be inconsistent with our system of representative litigation. Further, it would be unfair to penalize the opposing party and make them relitigate all the issues, when there is an action for malpractice available *189to any party who feels that their counsel’s conduct has fallen below what would be reasonable under the circumstances.
Tome had a responsibility to maintain contact with his counsel, and the counsel had a similar responsibility to Tome. The court cannot dictate or oversee the relationship between Tome and his counsel, Ms. Wilson. When Tome became aware of Ms. Wilson’s intention to withdraw he should have immediately obtained other counsel. The record shows that Tome knew, at least at the time of deposition, of Ms. Wilson’s intent to withdraw, yet he took no steps to protect his own interest. We hold that incapacity of Tome’s counsel, under the facts of this case, is not a valid excuse for disobeying the court’s discovery orders or for ignoring the discovery process.
C.
Tome also argues that his right to due process under the Indian Civil Rights Act, 25 U.S.C. §1302(8) (1968), was violated when notices of the proceedings were sent to his counsel of record and not to him. Due process requires that a party be given notice of any proceeding and afforded an opportunity to be heard. Yazzie, et al. v. Jumbo, et al., 5 Nav. R. 75 (1986); Navajo Engineering and Construction Authority v. Noble, 5 Nav. R. 1 (1984). It is an established rule that notice to the counsel of record serves as notice to the client. Tracey v. Heredia, 4 Nav. R. at 149 (Window Rock D. Ct. 1983); Smith v. Ayers, 101 U.S. 320 (1880).
The district court record listed Ms. Wilson as Tome’s counsel of record. All the court orders were mailed to Ms. Wilson’s office, and none were returned to the court. The court could presume that Ms. Wilson was receiving her mail, and had notice of the orders. We hold that Tome had notice of the proceedings and the due process requirement of notice under the Indian Civil Rights Act and the Navajo Bill of Rights, 1 N.T.C. §3 (1986 Amendment), were satisfied.
D.
The final issue arising from the October 27,1986 judgment concerns the attorney’s fees awarded to Chavez. The rule within the Navajo Nation is that each party is responsible for their own attorney’s fees. Hall v. Arthur, 3 Nav. R. 35 (1980); John, et al. v. Herrick, 5 Nav. R. 129 (1987). One recognized exception to this rule is where the case presents a special set of circumstances. The courts must exercise restraint in allowing recovery of attorney’s fees, but where evidence shows a special set of circumstances, the awarding of attorney’s fees is appropriate.
In this case, the district court found that there had been a flagrant disregard of the discovery rules and the court’s orders. Tome’s disregard of the rules and *190disobedience of court orders forced Chavez to incur additional costs to force compliance. We hold that a failure to comply with the discovery rules and the court’s orders, is a special set of circumstances justifying an award of attorney’s fees. It is appropriate to charge Tome for the unnecessary costs he forced Chavez to incur, because of his willful failure to comply with the rules and orders. The district court’s award of attorney’s fees in the amount of $1,020.00 is affirmed.
II. Damages
A.
The United $tates $upreme Court has held that compelling a newspaper to print that which “reasons” tells them not to publish is an unconstitutional violation of the First Amendment’s guarantee of Freedom of the Press. Miami Herald Publishing Company v. Tornillo, 418 U.S. 241, 41 L. Ed. 2d 730 (1974). Similarly, the Navajo Bill of Rights, 1 N.T.C. §1 (1986 Amendment), and the Indian Civil Rights Act, 25 U.8.C. §1302(1) (1968), guarantees the right of the press to be free of governmental intervention. The choice of material to be printed is a protected exercise of editorial control and judgment and the government is prevented from regulating this process. A responsible press is desirable, but it cannot be legislated by the Navajo Tribal Council or mandated by the Navajo courts. This does not mean that the press is free to print libelous material; because the government does have a legitimate interest in protecting an individual’s good name. A person who proves libel or slander may recover monetary damages for the actual harm suffered. This financial liability will serve as a deterrent and help assure that the press acts in a responsible manner.
We believe the printing of a retraction can serve as a method of mitigating damages. If the publisher voluntarily prints a retraction, the monetary damages may be reduced. To be effective the retraction must be published in the same manner and calculated to reach the same audience as the original material.
The decision to print a retraction rests with the publisher, and the court is prohibited by the Navajo Bill of Rights and the Indian Civil Rights Act from ordering a retraction. We hold that the district court erred in ordering that a retraction be printed.
B.
The remedy for libel is an action for damages. The damages may be actual, special, or punitive. The types of actual injury inflicted by the defamatory *191statements includes harm to reputation and public standing, personal humiliation, mental and emotional anguish and suffering. The finding of injury must be supported by competent evidence. However, because of the type of injury caused, the evidence need not prove an actual dollar amount of injury. The jury has the discretion to determine the actual dollar amount of injury by considering all the evidence. The jury’s finding is limited only by the general rule that the award not be excessive, and that it be supported by competent evidence. This Court will not overturn a jury’s determination of actual damages, unless it finds that the award is unsupported by the evidence. Tome has not provided a transcript to support his position that the jury’s award of actual damages is not supported by the evidence. See Rule 9(b)(1), NRCA P. Tome has not met his burden of showing that the jury’s award was not supported by the evidence.
C.
Punitive damages do not compensate for an injury, but rather are used to punish bad conduct and deter similar conduct in the future. The awarding of punitive damages may tend to inhibit a free press. Therefore, punitive damages are appropriate only in cases where it is shown that the publisher acted with knowledge of the falsehood of his statements, or acted with reckless disregard for the truth. In this case, the issue of liability was not heard on the merits. Tome’s knowledge of the falsehood of his statements, or his reckless disregard for the truth, were not established. For these reasons we hold that the district court erred in awarding punitive damages.
The Crownpoint District Court’s October 27,1986 judgment, on the issue of liability and the award of $1,020.00 for attorney’s fees, is affirmed. The awarding of $8,823.87 for actual damages is affirmed. The award of $1,176.13 in punitive damages and the court’s order that a retraction be printed are reversed.
Affirmed in part, and reversed in part.
. The letter states that Ms. Wilson was involved in a single car accident on December 15,1985, which resulted in physical injuries. On July 20,1986, she was re-injured while riding in a small engine aircraft. Since that time she has been unable to perform the tasks necessary in the practice of law. The last paragraph states: “Because the usual treatment modalities have not been successful ... I have advised her to stop working at this time.... In the meantime I feel it is medically necessary that her electricity be turned on and that she be able to heat her house.”
. Whenever counsel has once appeared either in open court or by motion to represent a party, such counsel shall be responsible to the Court for his actions and shall not be allowed to withdraw from the case except by order of the Court upon written motion naming new counsel and stating good cause. Rule 27, NRCP.
. At one point during Tome’s deposition, Mr. Waits assured Chavez’s counsel that, “we will provide the documents that you’re requesting.” This statement was made prior to the three hour recess. Tome Deposition at p. 31. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502844/ | OPINION
Opinion delivered by
Bluehouse, Associate Justice.
The controlling issues in these consolidated appeals are: (1) whether the appeal from the order granting a preliminary injunction is timely; and (2) whether an order denying a motion to dismiss for lack of jurisdiction is a final appealable order.1
The preliminary injunction enjoining the defendant, John Abbott, was signed by the district judge on August 21, 1987. The order denying Abbott’s motion to dismiss for lack of jurisdiction was signed by the district judge on September 1,1987.
According to counsel for Abbott, his secretary telephoned the district court clerk on September 18,1987, to inquire about the date when the two orders were signed. The secretary was informed by “Rose” from the district court that both orders were signed by the judge on September 1, 1987. Apparently, Abbott relied upon these communications with “Rose” and filed two notices of appeal on October 01,1987. The first is an appeal of *202the order granting the preliminary injunction, and the second is an appeal of the order denying the motion to dismiss.
I. Preliminary Injunction
This Court lacks jurisdiction over an appeal that is not filed within 30 days after the district judge has signed the final order. The Navajo Tribe of Indians v. Yellowhorse, Inc., 5 Nav. R. 133 (1987); Riverview Service Station v. Eddie, 5 Nav. R. 135 (1987). In a prior case we said that “[t]he failure to file a notice of appeal within the time limits specified by statute is a jurisdictional defect and requires a dismissal by the Court.” In the Matter of Adoption of: Baby Boy Doe, 5 Nav. R. 141 (1987). By statute, all appeals, unless otherwise provided by law, must be filed within 30 days after the district judge has signed the final order. 7 N.T.C. Sec. 801(a) (1985); Rule 8(a), NRCAP. Abbott’s appeal of the order granting the preliminary injunction was filed 10 days after the time elapsed for filing the notice of appeal. We hold that this Court lacks jurisdiction over the appeal of the order granting the preliminary injunction.2
We are not persuaded by Abbott’s argument that the appeal must be considered timely because Abbott relied upon information from Rose that the judge signed the orders on September 1,1987. First, the Court takes judicial notice of the fact that Rose is not a clerk of the district court. Second, the court clerk is not held to a higher standard of legal knowledge than the attorney. Tome v. Navajo Nation, 5 Nav. R. 14 (1984). For this reason attorneys must not rely upon oral communications solicited from court staff. The law within this jurisdiction requires that an appeal must be filed based upon a written final order of the district court, and not based upon oral communications with district court clerks. The record is clear that Abbott’s appeal of the order granting the preliminary injunction is late. This Court lacks jurisdiction to review that appeal on the merits.
II. Motion To Dismiss
This Court has jurisdiction “to hear appeals from final judgments and other final orders of the District Courts of the Navajo Nation...” 7 N.T.C. Sec. 302 (1985). (Emphasis ours). A person can only appeal from a “final judgment or other final order of a District Court of the Navajo *203Nation. ...” 7 N. T. C. Sec. 801(a) (1985). (Emphasis ours). The inquiry then is whether an order denying a motion to dismiss for lack of jurisdiction is a final order of the district court that can be appealed.
We took the opportunity to touch upon the concept of finality of district court orders in the context of appellate jurisdiction in Chuska Energy Company v. The Navajo Tax Commission, 5 Nav. R. 98 (1986). There we recognized that a final court order results after all the substantial rights of the parties have been litigated and decided on the merits by the district court. Chuska Energy Company, Id. We further said that, “the entry of the final decision must preclude further proceedings in the lower tribunal.” Id. at 102.
In effect, an order that precludes further proceedings on the merits will terminate a case. Thus, an order that terminates a case is final for purposes of appealability, even where it does not determine the merits of a case. In this case, the order denying the motion to dismiss did not terminate the case. We hold that an order denying a motion to dismiss is interlocutory and not final for purposes of appealability.
Interlocutory appeals are not allowed within the Navajo court system. Chuska Energy Company, Id.3 However, certain questions of law can be certified to the appellate court for review. Navajo Housing Authority v. Betsoi, 5 Nav. R. 5 (1984). The denial of the motion to dismiss in this case is interlocutory and it can not be appealed.
Both appeals from the respective orders of the Window Rock District Court are dismissed for lack of jurisdiction. Further, the motion for sanctions is denied.
. There are other issues presented by these appeals which we will not address. The appeals can be decided on the issues identified here.
. By this holding, we do not decide whether an appeal from an order granting a preliminary injunction is interlocutory.
. See also Orders of dismissal in Thompson v. General Electric Credit Corporation, 1 Nav. R. 234 (1977); Todachine v. The Navajo Tribe, 1 Nav. R. 245 (1977); Pelt v. Pelt, 2 Nav. R. 127 (1979); Mike v. Pete, 2 Nav. R. 129 (1979); Sellers v. Babbitt Ford, Inc., 2 Nav. R. 147 (1979); In the Matter of the Estate of: Nez, 3 Nav. R. 15 (1980). | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502845/ | OPINION
Opinion delivered by
Tso, Chief Justice.
On September 18, 1986, Petitioner Lula McClellan filed a Petition for Dissolution of Marriage in the Tuba City District Court. On January 27, 1987, Respondent Carl R. McClellan was personally served off the Navajo Reservation by a deputy from the Coconino County Sheriffs Department. Apparently, the petitioner did not request and obtain authorization from the Tuba City District Court to serve process upon the respondent through the Coconino County Sheriffs Department.
On March 16,1987, the petitioner filed a Motion for Default Judgment alleging that the respondent had been personally served, and despite such service, the respondent had not filed an answer to her petition. On April 16,1987, the respondent filed a motion to dismiss the petition for lack of personal jurisdiction. The respondent alleged in his motion that service of process upon him by the sheriffs deputy was improper. The respondent’s motion to dismiss was denied on April 22,1987. The respondent appealed the order denying his motion to dismiss on May 28,1987.
Apparently, the respondent is under the mistaken belief that by appealing the order denying the motion to dismiss, this Court would have jurisdiction to review the issue relating to service of process. This Court’s appellate jurisdiction covers final orders, or final judgments, entered by the Navajo District Courts. 7 N. T. C. Sec. 302 (1985); 7 N. T. C. Sec. 801(a) *205(1985). Chuska Energy Company v. The Navajo Tax Commission, 5 Nav. R. 98 (1986).
An order denying a motion to dismiss for lack of jurisdiction is not a final order that can be appealed. Billie v. Abbott, 5 Nav. R. 201 (1987). Indeed, a non-final order is merely interlocutory, and within the jurisdiction of the Navajo courts, interlocutory appeals are not allowed. Chuska Energy Company v. The Navajo Tax Commission, 5 Nav. R. 98 (1986); Billie v. Abbott, 5 Nav. R. 201 (1987). Here the order denying the motion to dismiss did not terminate the case. Neither did it decide the merits of the issues between the parties.
Interlocutory appeals only promote piecemeal litigation of the case. If parties in a case were allowed to appeal each adverse order of the district court prior to final judgment, this Court would be overburdened with appeals from one case. In addition, our decision on each order appealed would unduly interfere with the orderly administration of justice in the district court. For these reasons we hold that the order denying the motion to dismiss in this case is not a final appealable order. The appeal is dismissed for lack of jurisdiction. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502846/ | OPINION
Opinion delivered by
YAZZIE, Associate Justice.
The defendants, Edker Wilson and the Northern Navajo Fair Board, have appealed the judgment of the Shiprock District Court awarding $75,606.221 in damages to plaintiff, Victor Begay, for injuries Mr. Begay received at the 1983 Shiprock Fair. Mr. Wilson provided livestock and some personnel for a rodeo held at the Fair under the Fair Board's management in October, 1983. During the bull riding event, a bull escaped from the arena, and while being pursued by two employees of Mr. Wilson, it crossed highway 666, and struck Mr. Begay, who was walking in the concessions area. Mr. Begay was present at the Fair to sell jewelry at a stand he rented from the Fair Board.
Victor Begay filed suit against Mr. Wilson and the Fair Board in the summer of 1984, asking for $75,000 in damages. After trial, on January 24,1986, the court entered its findings and judgment. Among the court’s findings concerning the bull's escape from the arena are the following: (1) the bull presented a foreseeable risk of danger to the safety of persons in the area in the event it escaped (finding no. 4); (2) the Fair Board was responsible for hiring, training, and supervising the person in charge of opening the stripping gate, by which the bull was supposed to exit the arena (findings no. 10, 11); (3) because the Fair Board did not meet its responsibility adequately, the person in charge of the gate did not open it at the proper time (findings no. 11, 12); (4) the fence enclosing the arena was inade*2quate. The fence was not of the type used at fairs with large attendances, and it had not been properly maintained, although the cost of proper maintenance would have been reasonable (findings no. 13-17); (5) Edker Wilson's employees did not examine the fence or inquire whether the person in charge of the gate was properly trained, and they did not instruct on or oversee the operation of the stripping gate (finding no. 20); (6) Edker Wilson's employees “carelessly” failed to prevent the escape of the bull from the arena after it threw its rider (findings no. 21-23); and (7) Edker Wilson's employees failed to recapture the bull within a reasonable time, and they failed to contain the bull in an area which would have minimized the danger to fairgoers (finding no. 24). Judgment at 2-5.
As a result of these findings, the court concluded as a matter of law that: (1) the Fair Board was negligent in not properly hiring, training, and supervising the person who operated the stripping gate (conclusion no. 5); (2) the Fair Board was negligent in not repairing, replacing, and adequately maintaining the arena fence (conclusion no. 6); and (3) the Fair Board was negligent in not being prepared for the escape of livestock from the rodeo arena, and in not apprehending the bull, and otherwise preventing the injuries to Mr. Begay (conclusion no. 7); and Edker Wilson and his employees were negligent in failing to check the safety of the arena fence, and report that it was unsafe, and in failing to ensure that the stripping gate was correctly operated (conclusion no. 9); and Edker Wilson and his employees were negligent in failing to properly handle the bull after the ride, and in failing to prevent its escape, and to recapture it within a reasonable time (conclusion no. 10).
In apportioning fault, the court concluded that the Fair Board's and Mr. Wilson's negligence constituted, respectively, 75% and 25% of the proximate cause of Mr. Begay's injuries (findings no. 26, 27; conclusions no. 11, 12).2 Judgment at 5, 10.
The court also made findings concerning Victor Begay's damages. The court found that, because of his injuries, Mr. Begay was unable to work from October, 1983 until January, 1984. Mr. Begay began to work in January, 1984, and his recovery continued during the summer of 1984. Mr. Begay owns a jewelry manufacturing business. Because he was unable to work, he suffered a loss of income, and had to sell equipment needed for making jewelry. The resulting damage to Mr. Begay’s business continued up to the time of the trial. The court determined that, before Mr. Begay's injuries, his jewelry business had an income of approximately $60,000 per year after expenses. Mr. Begay's loss of income also led to the repossession of a tractor, a pickup truck, and other personal possessions, and it caused his family considerable hardship. The effects of Mr. Begay's injuries lasted for several months, which caused him a great deal of pain and which led him to obtain the services of a medicine man. Judgment at 5-8. As a result of these findings, the court concluded that Mr. Begay had “sustained a *3total amount of damages of $75,000; which were directly and proximately caused by the accident and injury.” Judgment at 8.
Edker Wilson and the Fair Board filed notices of appeal on February 21,1986, and this Court granted the appeal to decide: (1) whether there is sufficient evidence to find the defendants negligent; and (2) whether the evidence was sufficient to support the court's award of damages.
I. NEGLIGENCE
A
This Court's review on appeal is limited to questions of law. 7 N.T.C. § 803 (Supp. 1986). Thus, this Court may set aside a finding of fact only if evidence in the record is insufficient, as a matter of law, to support the finding. This Court must uphold the district court's finding of negligence if the evidence most favorable to that finding is sufficient to establish the defendant's negligence.
The legal basis for awarding compensatory damages in Navajo law is 7 N.T.C. § 701 (Supp. 1986),3 which states in part:
(a) In all civil cases, judgment shall consist of an order of the court awarding money damages to be paid to the injured party ....
(b) Where the injury inflicted was the result of carelessness of a party, the judgment shall fairly compensate the injured party for the loss he has suffered.
(d) Where the injury was inflicted as the result of accident, or where both the plaintiff and the defendant were at fault, the judgment shall compensate the injured party for a reasonable part of the loss he has suffered.
This Court has held that, ‘“[cjarelessness’ is actually the same legal standard as ‘negligence’... ."4 Mann v. Navajo Tribe, 4 Nav. R. 83, 85 (1983).
In determining whether a party was negligent, a court must determine whether that party owed a duty of care to the individual who was injured. Mann v. Navajo Tribe, id,., illustrates the nature of a person's duty of care for others. There, a police officer driving his official vehicle through tall sagebrush inadvertently drove over an intoxicated man who had fallen asleep on the ground. This Court determined that the officer owed a duty “to conduct police patrol duties in a careful manner, considering the circumstances . . . .” Mann at 84. In Mann, we held that it was not the officer's duty that “he must foresee the possibility of a drunk *4in the sagebrush at EnemyWay Ceremonies.” Mann at 85.
The standard of care this Court applied in Mann is consistent with other jurisdictions, where failure to exercise ordinary care in avoiding foreseeable harm to others constitutes negligence. See, e.g., Latimer v. City of Clovis, 83 N.M. 601, 495 P.2d 788, 793 (1972). Thus , the duty of care owed by an individual is closely related to the foreseeability that another individual will be harmed. Ramirez v. Armstrong, 71 N.M. 288, 377 P.2d 822, 825 (1983); Chavez v. Tolleson Elementary School District, 122 Ariz. App. 472, 595 P.2d 1017, 1021-22 (1979). The extent of the duty owed depends on the circumstances. Latimer, 495 P.2d at 796. Where the danger of injury to others is greater, so is the duty to exercise care. Chavez, 595 P.2d at 1021.
In this case, it is foreseeable that a full-grown bull running through an area crowded with pedestrians would injure someone. There is testimony in the record to support the findings that (1) the fence enclosing the arena was inadequate, (2) the bull would not have escaped if the gate had been operated properly, and (3) the bull would not have escaped if both “pick-up men,” who were provided by Edker Wilson to control animals in the arena, had been present in the arena and had done their job competently.5 It was also reasonably foreseeable that the bull would escape from the arena. This is supported by testimony that the fence was inadequate and the gate operator and the two pick-up men failed to perform their duties properly.
Neither defendant presented expert testimony by an uninvolved party that would establish a standard of “ordinary care” for rodeos, or that would show clearly that the bull's escape was not reasonably foreseeable under the circumstances. In the absence of such testimony, the court was within its discretion, as trier of fact, to draw its own conclusions on these questions based on the evidence before it.
There is sufficient evidence in the record to support the conclusion that Edker Wilson and the Fair Board were negligent by failing to perform their duties with ordinary care under the circumstances. The evidence in the record supports the district court's apportionment of fault. We affirm the district court's finding as to negligence.
B
Edker Wilson argues that his contract with the Fair Board shifts his liability for Mr. Begay's injuries to the Fair Board. That contract established the Fair Board's responsibility for the condition of the arena, and it absolved Wilson from any liability for injuries to “any contestant, spectator, or help furnished by Employer.” Contract dated August 30,1983. However, Victor Begay was neither a contestant, a spectator, nor help furnished by the Fair Board. The contract was a form contract provided by Mr. Wilson, and courts have construed such docu*5ments strictly against the drafter. See 17 Am. Jur. 2d Contracts § 276 (1964). Strict construction is especially common where one party contracts to avoid liability for his own negligence. 17 Am. Jur. 2d Contracts § 253.
The contract clearly places responsibility on the Fair Board to provide an arena “which shall be adequately fenced for the protection of all concerned.” Contract dated August 30, 1983. However, Mr. Wilson is in the business of providing livestock and personnel for rodeos. Mr. Wilson and his employees have participated in rodeos in many other locations, and his employees were certainly in as good a position as the Fair Board to know that the fence was inadequate. One of Mr. Wilson's employees testified at trial that the type of fence used was not standard, Tr. at 27-28, and that he had “reason to believe that the fence was inadequate.” Tr. at 44. Although Mr. Wilson's employees were not responsible for the state of the fence, they were responsible for providing the animals that performed within the fence. The court could reasonably find them negligent for allowing their potentially dangerous animals to be released into the arena when they had reason to believe the fence was inadequate.
The court's apportionment of fault reflected the Fair Board's greater responsibility for the condition of the fence and also reflected the negligent performance of the gate operator. Edker Wilson's liability rests on his employees’ negligent performance as pick-up men, as well as on their failure to inspect the fence, and oversee the stripping gate operation. Therefore, the district court's finding that Mr. Wilson was 25% liable for Victor Begay’s injuries was proper, notwithstanding the contract between Mr. Wilson and the Fair Board.
II. DAMAGES
The plaintiff has the burden of proving damages. The plaintiff must first establish with reasonable certainty that the defendant's conduct caused the plaintiff damages. The plaintiff must then establish the amount of his damages with reasonable certainty. The rule within the Navajo Nation is that an award of damages must be based upon proof and not speculation. Hall v. Arthur, 3 Nav. R. 35, 40 (1980).
Where necessary, the plaintiffs testimony can constitute adequate proof of damages, but the testimony must establish all the elements necessary to justify an award of damages. Deal v. Blatchford, 3 Nav. R. 159, 163 (1982). A reasonable basis for the computation of all damages must appear in the record. However, the plaintiff need not prove damages with mathematical certainty. Damages may be shown with the best available evidence. As with other factual determinations, this Court must accord considerable deference to damages awarded by the trier of fact. In New Mexico, for example, damages may be reversed on appeal only in extreme cases. Chavez v. Atchison, Topeka and Santa Fe Railway Co., 77 N.M. 346, 423 P.2d 34, 38 (1967); Hansen v. Skate Ranch, Inc. , 97 N.M. 486, 641 P.2d 517, 523 (1982).
*6In this case, the Fair Board argues both that the damage award is excessive and that the award is not supported by sufficient evidence. Damages would be excessive if the evidence viewed in plaintiffs favor does not support the award, or if the damage award is a result of passion, prejudice, partiality, undue influence, or a mistaken measure of damages on the part of the fact finder. Testimony at trial indicated that Victor Begay's business, which had sold some $140,000 worth of jewelry per year before the accident, was forced to close completely for several months. Much of the machinery needed for the business had to be sold, and as a result, the business had not recovered fully by the time of the trial. Several of Mr. Begay's personal possessions were repossessed, and his daughter was unable to return to college. It is possible that $75,000 is reasonable and not excessive damages for the harm Mr. Begay suffered.
The Fair Board argues that damage awards that result from passion or prejudice on the part of the trier of fact must be reversed. However, apart from the size of the award itself, the Fair Board has cited no evidence from the record that would indicate that the district court improperly favored Mr. Begay. We can find no indication of partiality in the record.
We have just established the rule that the plaintiff must prove the amount of damages he suffered with a reasonable certainty. Mr. Begay asked for $75,000 in his complaint, and that is what the court awarded him, but there is no indication that either Mr. Begay or the court attempted to calculate the final award from the various losses testified to at trial. In most cases, it is impossible to assign a specific dollar amount to those individual losses based on evidence in the record.
Mr. Begay is in the best position to measure the extent of his loss , and he must bear the burden of establishing the amount of damages through the best available evidence. The record contains testimony that businesses such as Mr. Begay's often do not keep complete and detailed written records covering every transaction. Mr. Begay testified that he often received in-kind payments. Therefore, the court may not require Mr. Begay to provide documentary evidence to support his claims for lost profits and damage to his business if it appears that such evidence would be incomplete or inaccurate. However, the court must require Mr. Begay to reasonably justify, given the evidence available to him, the damages he is seeking.
For the benefit of the district court on remand, we mention some of the factual questions that must be clarified in order to justify a damage award.
l.Lost profits. Mr. Begay testified that his gross income from his business was about $60,000 per year, and his net income about $30,000 per year. However, he did not estimate his income at the time of the trial. Further, Mr. Begay testified that he had recovered from his injuries by August, 1984, but that he still worked fewer hours than before his injuries. He did not testify whether his worldng shorter hours was the result of his injuries. This information is necessary in order to compare his expected income with his income after the accident and to determine the amount of income he actually lost because of his injuries.
*72. Damage to Mr. Begay's business. Mr. Begay testified that he was forced to sell, under unfavorable market conditions, machinery needed in his business, and that his business had not recovered. He also testified as to his loss in selling the machinery. However, he must provide information on how much the sale of equipment affected his production capacity, and how much it would cost to restore that capacity.
3. Repossessed items. In order to justify damages for the repossessed items, Mr. Begay must present an estimate as to (1) the approximate market value of the items when they were repossessed, and (2) how much he still owed on all the items. The proper measure of damages is the market value of the items at the time of repossession minus the amount still owed, plus any consequential damages.
Mr. Begay must establish his damages with the best available evidence. If the only available evidence is his own testimony, then his personal testimony is adequate, and the defendants have the burden of disproving that testimony. However, courts may not simply pick a figure for damages that seems fair, without some indication of how that figure was calculated. Courts must carefully scrutinize claims for damages even after the defendant's liability has been proven, and the record must contain a reasonable justification for the amount of damages awarded.
The district court's findings as to Edker Wilson's and the Fair Board's comparative negligence is affirmed. The award of damages is reversed, and the case is remanded for further proceedings to determine the proper amount of damages.
. The court awarded Mr. Begay $75,000 in compensatory damages and $606.22 for costs of litigation.
. Although the court listed its 75%-25% division of responsibility as a finding of fact, a determination of "fault" is at least partially a conclusion of law.
. This section was adopted almost verbatim from federal regulations. See, 25 C.F.R. § 11.24 (1987).
. The Fair Board has argued on appeal that the use of the words, "careless" and “inflicted, " in subsection (b) indicates that a positive, careless act which directly inflicts an injury on an individual is necessary for an injury to be compensable. However, when subsections (b) and (d) are considered together, the obvious intent is to establish a comparative negligence standard, rather than to establish a standard for compensation stricter than that of negligence.
. Robert Wade Wilson, one of two pick-up men provided by Edker Wilson, testified at trial that he was the only pick-up man working in the arena at the time the bull escaped. Tr. at 18. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502847/ | OPINION
Opinion delivered by
AUSTIN, Associate Justice.
The Appellant, Thomas S. Joe, appeals the order of the Shiprock District Court, which dismissed his suit for lack of jurisdiction. The notice of appeal alleges that the final order was entered by the Honorable Judge Hilt, District Judge, on January 25, 1988.
On February 24, 1988, the Appellant filed a notice of appeal and paid the required filing fee. However, the Appellant failed to attach a certified copy of the Shiprock District Court's final order to the notice of appeal.
Our preliminary review of the appeal reveals that the jurisdictional requirements for originating an appeal have not been met. We have no choice, but to dismiss the appeal for lack of jurisdiction.
Rule 7, NRCAP, (effective March 1, 1987), sets forth the requirements for filing a notice of appeal and for originating an appeal. Rule 7(a), NRCAP, states that:
All appeals shall originate by filing a written Notice of Appeal with the Clerk of the Supreme Court. A certified copy of the judgment, order, or administrative decision being appealed, signed by the judge or hearing officer and dated, must be attached to the Notice of Appeal, and the filing fee must be paid at the time of filing, (emphasis ours).
Rule 7(b), NRCAP, further states that: “The Clerk shall not accept any appeal for filing and no appeal shall be considered filed until the filing fee has been paid and a copy of the final judgment has been attached.” (emphasis ours).
The requirements of Rule 7(a) and Rule 7(b), NRCAP, are jurisdictional, along with the requirement that all appeals must be timely filed. See Rule 8, NRCAP; Riverview Service Station v. Eddie, 5 Nav. R. 135 (1987); Navajo Tribe of *9Indians v. Yellowhorse, 5 Nav. R. 133 (1987).
The rule is plain that a notice of appeal that is filed without an attached certified copy of the final district court judgment or order will be dismissed. Tome v. Navajo Nation, 5 Nav. R. 14 (1984); See also Poyer v. Navajo Nation, 3 Nav. R. 26 (1980); Denetclaw v. Thompson, 3 Nav. R. 18 (1980). Because the Appellant failed to attach a final order of the district court to the notice of appeal, the appeal is dismissed for lack of jurisdiction.
The responsibility for compliance with the appellate rules on originating an appeal rests with the Appellant. The final judgment or order of the district court is an essential requirement for originating an appeal. See Tome v. Navajo Nation, 5 Nav. R. at 15.
The final order will contain the district judge's signature, and the date the order was entered. These, the Court must know to determine whether the appeal was filed on time. The final order will also be reviewed to determine whether a final decision has been entered by the district court. This, the Court must know, because interlocutory appeals are not allowed within the Navajo Nation. McClellan v. McClellan, 5 Nav. R. 204 (1987). Compliance with the rules for originating an appeal is important, because they govern the process by which the Court operates efficiently, and thereby reduces the costs and burdens to the parties.
This appeal is dismissed for lack of jurisdiction. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502848/ | OPINION
Opinion delivered by
AUSTIN, Associate Justice.
We granted this appeal from a criminal conviction to decide: (1) whether the district court erred by ruling that the defendant cannot invoke the husband-wife privilege at trial; (2) whether the defendant's extrajudicial statement, “[I] hit him [the victim] several times,” should have been excluded as hearsay; and (3) whether there is sufficient evidence to support the defendant's conviction of aggravated battery.
I
In the evening of March 14,1987, the victim, Wilson Murphy, was returned to his house near Yatahey, New Mexico by his daughter, Thelma Murphy. Upon arrival, Thelma observed that only the defendant, Wilbert Murphy, was present at the house. The victim resided in the house, which was located on allotted land, only with the defendant who was his son.
In the morning of March 15,1987, the defendant showed up in Shiprock, New Mexico at the residence of Ms. Jodie Medina's mother. Ms. Medina is the defendant's alleged common-law wife. While there the defendant told Ms. Medina that his father was dead. When she asked the defendant “how, what happened?” the defendant replied that “he hit him several times.” Tr. at 30, 31. Later that same morning, the defendant and Ms. Medina returned to Yatahey, New Mexico, and from there the defendant reported the death to the sheriffs office in Gallup, New Mexico.
When the police arrived a short time later, they found the victim lying on the floor of the house. Examination revealed bruises all over the area of the face. *11Cuts were apparent above the right eye and on the lip. There were also several bruises and cuts on the arms and on the abdominal area. There was blood on the floor near the victim's head, on the carpeting, and on a wall behind the victim's head. The medical investigator arrived at 1:00 p.m. and after examination concluded that death had occurred approximately 12 hours earlier. Death by natural causes was ruled out.
The defendant was taken into custody by McKinley County sheriffs officers who were the first ones on the scene. Later, two FBI agents and three Navajo tribal police officers arrived. The defendant was given his miranda rights by an officer from the Navajo Division of Public Safety prior to initial questioning. The defendant immediately refused to make any statements without the assistance of an attorney. The defendant's clothes were confiscated and sent to the FBI crime laboratory in Washington, D.C. for processing. The results of the tests on the clothes were not available at the time of the defendant's trial.
On April 14, 1987, the defendant was charged with aggravated battery, in violation of 17 N.T.C. § 317 (1977). On the same date, the prosecutor listed on the criminal complaint all the witnesses for the Navajo Nation. Included in the list was Ms. Medina. No objection to Ms. Medina as witness for the Navajo Nation was ever raised by the defense prior to trial.
The defendant was brought to trial on April 29, 1987. After three witnesses had been directly examined and cross-examined, the prosecutor called Ms. Medina to the stand. Ms. Medina was sworn in as a witness without objection. The relevant portion of the testimony then went as follows:
Prosecutor: You are aware of the trial of this case; you know who is on trial here today?
Ms. Medina: Yeah.
Prosecutor: Who?
Ms. Medina: My boyfriend.
Prosecutor: Can you see him in this court?
Ms. Medina: Yeah.
Prosecutor: Where is he at?
Ms. Medina: Sitting right there.
Prosecutor: Can you point to him?
Ms. Medina: Right there.
Prosecutor: Okay, how is he related to you?
Ms. Medina: He was my boyfriend.
Prosecutor: Your boyfriend?
Ms. Medina: Yeah.
Defense: Your honor, I want to object to the testimony of this witness due to the fact that this witness is the wife of the defendant; had been living together for over two years, and they have a child, and I believe that there is a rule that recognizes privileges between husband and wife. She is a common-law wife of the defendant and common-law marriages are recognized, pursuant to Louise Etsitty case which was, has been decided by the Supreme Court, and also the Ketchum case. Therefore we object to her testimony.
*12The district court ruled that the husband-wife privilege was unavailable to the defendant, because the evidence presented through testimony did not show that a marital relationship existed. The key evidence that supported the court’s ruling came from Ms. Medina's testimony, wherein she had identified the defendant three times as her “boyfriend.” Other evidence showed that Ms. Medina and the defendant maintained separate residences: Ms. Medina in Shiprock, New Mexico and the defendant in Yatahey, New Mexico. The court further found that the parties' relationship had never been validated as a marriage according to law.
The failed attempt to keep Ms. Medina off the witness stand resulted in damaging testimony against the defendant. Upon questioning by the prosecutor, Ms. Medina testified that the defendant had told her that “his father was dead.” She testified that she asked the defendant “how, what happened?” and he replied that “he hit him several times.” Tr. at 30, 31. Despite objections from defense counsel based upon hearsay, the court admitted the statements as admissions by the defendant. Indisputably, Ms. Medina's testimony was the crucial evidence used to link the defendant to the crime. The defendant was sentenced to 180 days in jail with no fine. On June 19,1987, the defendant's sentence was stayed pending our decision on appeal.
n
A
The husband-wife privilege claimed by the defendant is a recognized privilege under Rule 13, Nav. R. Evid. (1978 ed.). Despite the lack of an accompanying commentary, the consensus is that the drafters of Rule 13 relied upon the reasons that justified the use of the privilege in federal courts. The Navajo court structure and the rules used by our courts are commonly known to be patterned after the federal system.
American jurisprudence has traced the husband-wife privilege to medieval England, where it originated as a rule of absolute disqualification. The belief was that a wife could not be produced as a witness either for or against a husband. Trammel v. United States, 445 U.S. 40, 44 (1980). Medieval jurisprudence, apparently, did not recognize a wife's separate legal existence from her husband, because the husband and wife were considered one and the husband was the one. Trammel v. United States, id. Although the American courts did not fully embrace the English concept, the rule entered American jurisprudence well intact. It was not until Funk v. United States, 290 U.S. 371 (1933), that the rule evolved into a privilege in the federal courts, rather than one of absolute disqualification. The modern rationale for the rule has been aptly stated by the United States Supreme Court: “The modern justification for this privilege against adverse spousal testimony is its perceived role in fostering the harmony and sanctity of the marriage relationship.” Trammel v. United States, 445 U.S. at 44.
The original justification for the privilege has no support in Navajo tradition *13and culture. Navajo society is matrilineal and matrilocal which automatically precludes conceiving a rationale similar to the one begotten by medieval English beliefs. Navajo tradition and culture have always revered the role of Navajo women within Navajo society; thus, the husband-wife privilege, as utilized in Navajo jurisprudence, must be based upon a rationale different from the belief that a wife is legally non-existent within a marriage.
Traditional Navajo society places great importance upon the institution of marriage. A traditional Navajo marriage, when consummated according to a prescribed elaborate ritual, is believed to be blessed by the “Holy People.” This blessing ensures that the marriage will be stable, in harmony, and perpetual. A rule whose justification is to prevent the breakup of a marriage is not contrary to the beliefs of traditional Navajo society. The husband-wife privilege, as it is invoked in Navajo jurisprudence, is then justified by Navajo society's interests in preserving the harmony and sanctity of the marriage relationship.
Perhaps in the future, we may be asked to weigh the rule and its purpose, against the justice system's desire for disclosure of all relevant evidence in litigation. But until then, the husband-wife privilege is a necessary component of Navajo jurisprudence, given that marriage is important to Navajo tradition and culture.
B
The need to protect the harmony and sanctity of a marriage arises only where there is a marriage. A marriage must exist before the husband-wife privilege is available, and it can only be invoked to prevent adverse spousal testimony. The burden is upon the defendant to prove that he and Ms. Medina were married during the time of the alleged marital communication.
The defendant contends that his relationship with Ms. Medina can be recognized as a common-law marriage. Relationships commonly referred to as common-law marriages have been recognized as marriages within the Navajo Nation. In the Matter of the Validation of Marriage of: Ketchum, 2 Nav. R. 102 (1979). According to Ketchum, all these elements must be proven to establish a common-law marriage: (1) present consent to be husband and wife; (2) actual cohabitation; and (3) actual holding out to the community to be married. Id. at 105.
There cannot be a marriage without a voluntary agreement or consent between the parties to be married. And a husband cannot be a mere boyfriend. Ms. Medina, defendant's alleged spouse, has testified to her belief that the defendant is her boyfriend, therefore the mutual present consent to be husband and wife is lacking.
Mutual present consent alone is not sufficient to establish a common-law marriage. The parties must carry out their agreement to be husband and wife by actual cohabitation. In other words, they must openly live together in the same place as husband and wife. Evidence presented in this case shows that the defendant resides in Yatahey, New Mexico and Ms. Medina resides in Shiprock, New *14Mexico; a distance of 85 miles separates the two. Actual cohabitation has not been established.
Ketchum, id., further requires that the parties actually hold themselves out to the community as married. There must be some public recognition that the parties are married, because the public and the Navajo Nation have an interest in the marriage agreement. No evidence has been presented by the defendant to satisfy this element.
We agree with the district court that a marriage has not been shown to exist between the defendant and Ms. Medina. This Court holds that the district court did not err by ruling that the defendant cannot invoke the husband-wife privilege at trial.
Ill
We have just determined that the defendant cannot bar Ms. Medina as a witness for the Navajo Nation. The defendant contends that should we decide the first issue for the Navajo Nation, then we must decide whether the defendant's extrajudicial statement should have been excluded as hearsay. The defendant wants us to assign error to the admission of his statement, “I hit him several times,” because that statement was crucial to his conviction.
Hearsay is “an out of court statement of a person other than the one testifying offered in evidence in order to prove the truth of the matter asserted in that statement. “ Rule 25, Nav. R. Evid. (1978 ed.). Without question, Rule 25 makes the defendant's statement hearsay. But certain statements that are otherwise hearsay are admissible as exceptions to the hearsay rule. See Rule 26, Nav. R. Evid. (1978 ed.).
Rule 26 permits admission of hearsay conditional upon proof that the statements are trustworthy. In addition, these statements must not violate other exclusionary rules of evidence. An admission of a party opponent is an exception to the hearsay rule.1 Rule 26(24), Nav. R. Evid. (1978 ed.). It was under this exception that the defendant's statement was admitted. The district court, apparently, found no bar to the admission of the defendant's statement, and based upon the record on appeal, neither do we. We hold that the district court properly admitted the defendant's statement as an admission of a party opponent.
IV
The remaining question is whether there is sufficient evidence to support the defendant's conviction of aggravated battery. The defendant contends that the only evidence submitted by the prosecution is Ms. Medina's testimony on his *15admission, which, according to the defendant, is insufficient to support his conviction without corroborating evidence.
We will not sustain a conviction based solely upon an extrajudicial admission. The possibility is great that an alleged admission may be fabricated to establish the defendant's guilt. We doubt that an admission, in of itself, is sufficient to satisfy the law that in every criminal case, the Navajo Nation must prove every element of the offense beyond a reasonable doubt. 17 N.T.C. § 206 (1977); Navajo Nation v. Carty, 1 Nav. R. 296, 298 (1978).
The rule just established does not preclude use of an admission, in conjunction with other evidence, direct or circumstantial, to prove guilt. Here, the defendant's admission is corroborated by evidence that the victim was severely beaten and death ensued; death was not the result of natural causes; only the defendant was last seen with the victim; only the defendant resided with the victim; the defendant took flight to Shiprock, New Mexico; the defendant delayed reporting the incident to the authorities; and the defendant refused to comment to the authorities on the incident.
The Navajo Nation has the duty to show, by proof beyond a reasonable doubt, that the defendant unlawfully applied force to the person of Wilson Murphy, or that the defendant intentionally or knowingly caused serious physical injury to the person of Wilson Murphy. 17 N.T.C. § 317 (1977). On review, in determining whether evidence is sufficient to support the defendant's conviction, we will view the evidence in the light most favorable to the Navajo Nation, and resolve all reasonable inferences against the defendant. See State v. Hunter, 102 Ariz. 472, 433 P.2d 22 (1967).
We believe that the defendant's admission, considered together with the corroborative evidence, supports the district court's conclusion that the defendant is guilty of the crime charged. We hold that there is substantial evidence to support the defendant's conviction of aggravated battery.
The judgment is affirmed.
. Under the federal rules, an admission of a party opponent is not hearsay. Rule 801(d)(2), Fed. R. Evid. The rationale for that theory is that the admissibility of an admission is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502849/ | OPINION
Opinion delivered by
Bradley, Associate Justice.
I
This is a land dispute case in which the issues raised by the original complaint were fully decided on the merits by the Chinle District Court on October 6,1981. Bedoni v. Halwood, CH-CV-112-81 (Chinle D. Ct. 1981) (Bedoni). The parties in Bedoni each alleged ownership of the land in dispute. The parties that litigated on the merits in that case were Nowethalie Badonie,1 petitioner, and Danny and Virginia Halwood, respondents. The court determined in Bedoni that the land in dispute was Mr. Badonie's property, and, therefore, an order was entered voiding a land use permit that had been issued to the Halwoods by the Bureau of Indian Affairs (BIA) for the land in dispute. See Judgment of October 6, 1981, Bedoni v. Halwood, id.
The Halwoods appealed the October 6, 1981 judgment. The appeal was dismissed on September 27, 1983, because of the Halwoods1 failure to attach a certified copy of the final judgment to their notice of appeal. Halwood v. Bedonie, A-CV-47-81 (1983). A subsequent petition for reconsideration of the dismissal of the appeal was denied on June 11, 1984. Halwood v. Bedonie, A-CV-24-82 (1984).
On or about October 1, 1985, the Halwoods filed in the Chinle District Court *17a new action seeking to “modify” the judgment entered on October 6, 1981. Halwood v. Estate of Nowethalie Badonie, CH-CV-202-85 (Chinle D. Ct.). The Halwoods alleged that “changed circumstances” subsequent to the entry of the October 6, 1981 judgment warranted modification of the judgment under Rule 23, NRCP (1978 ed.).
The changed circumstances, according to the Halwoods, were that: (1) Mr. Badonie had not made use of the land since the October 6, 1981 judgment; (2) The Halwoods had made improvements to the land prior to the October 6, 1981 judgment; (3) Mr. Badonie had not sought enforcement of the October 6, 1981 judgment; (4) The BIA had not issued a permit to Mr. Badonie; (5) The BIA had not cancelled the Halwoods' land use permit as ordered on October 6, 1981; and (6) Mr. Badonie had lived all his life away from the disputed land. The Halwoods asked the court to modify the October 6, 1981 judgment by awarding them title to the land or otherwise declaring that their interest in the land was valid.
On February 24,1986, the district court dismissed the petition for modification for lack of subject matter jurisdiction. The court found that the Halwoods had lost their remedy of appeal from the original judgment and, thus, were using the petition for modification to relitigate the land dispute issue for the purpose of reversing the October 6, 1981 judgment. The court ordered that res judicata barred the petition for modification. The Halwoods appealed to this Court on March 23, 1986 by raising the issue of whether the district court abused its discretion by dismissing their petition for modification based upon res judicata.
II
As to a final judgment on the merits, the doctrine of res judicata prevents relitigation of identical claims, demands, and causes of action involving the same thing sued for between the same parties and their privies. See Black's Law Dictionary 1174 (5th ed. 1979). Navajo people in their traditional practices on dispute resolution are not strangers to the effect of res judicata. Traditionally, after everyone who had an interest in a controversy had their say and the controversy was finally decided, it was respected. In a landmark case this Court said:
When all have been heard [on a dispute] and the decision is made, it is respected. This has been the Navajo way since before the time of the present judicial system. The Navajo people did not learn this principle from the white man. They have carried it with them through history.
Halona v. MacDonald, 1 Nav. R. 189, 205 (1978).
In modern practice before the Navajo courts, res judicata is necessary for judicial economy, to protect the interests of litigants from unfair prejudice, and to have disputes once decided stay decided. In fact, res judicata has been applied in prior cases decided by the Navajo courts. See In the Matter of the Estate of Ray Lee, 1 Nav. R. 27 (1971); In the Matter of the Guardianship of Catherine Denise Chewiwi, 1 Nav. R. 120 (1977). And the Navajo Rules of Civil Procedure rec*18ognizes res judicata as an affirmative defense. Rule 6, NRCP (1978 ed.). The Halwoods acknowledge the effect of the doctrine and that it has been applied by the Navajo courts .
A
The Halwoods initially argue on appeal that res judicata does not apply to their case because their petition for modification used Rule 23, NRCP, in an attempt “to reopen the judgment” in Bedoni v. Halwood, CH-CV-112-81 (Chinle D. Ct. 1981). Brief for Appellants at 3. Rule 23 allows a court, after final judgment or order, to “reopen a case in order to correct errors or consider newly discovered evidence, or for any reason consistent with justice.” Rule 23, NRCP (1978 ed.). A Rule 23 motion is used to “reopen a case,” after the issue in the case has been finally decided. Rule 23 cannot be used to begin a new action. Rule 23 may permit reopening the case in Bedoni if the petition for modification is indeed a further proceeding in the same case.
To determine whether Rule 23 applies, we must decide whether the petition for modification is a further proceeding in Bedoni or whether it is a new action separate from Bedoni. If the petition is indeed a Rule 23 motion, then res judicata would be inapplicable and the Halwoods would be required to show that new evidence or justice requires reopening the judgment. Navajo Engineering and Construction Authority v. Noble, 5 Nav. R. 1 (1984); Brown v. Brown, 3 Nav. R. 239 (Window Rock D. Ct. 1982).
The Halwoods have argued on appeal that their petition for modification has alleged facts and a cause of action different from those in Bedoni. In all respects, the Halwoods desire that we view their petition as a new suit. In addition, the record shows that the petition for modification was filed as a new action against the estate of Nowethalie Badonie. Even the docket numbers in Bedoni and this case are different. We hold that the petition for modification is intended to start a new action, and as such, Rule 23, NRCP, is inapplicable.
B
It is our determination that the petition for modification is a new action separate from Bedoni v. Halwood, CH-CV-112-81. The question then is whether res judicata bars the petition for modification. The Halwoods' position is that it does not. In support the Halwoods argue that the facts and the cause of action alleged in the petition are different from those in Bedoni. Furthermore, the Halwoods argue that the cause of action alleged in the petition arose after rendition of judgment in Bedoni. We disagree with the Halwoods for the following reasons.
An examination of the petition for modification shows that the Halwoods want the court to again decide the ownership of the land. This was precisely the claim presented in the first action where it was decided that Mr. Badonie owned the land. Bedoni v. Halwood, CH-CV-112-81. For example, at allegation 12 in *19their petition the Halwoods state: “[E]quity states that they [Halwoods] should have rightfuly [sic] title to the use of the land....” And at 15 they state: “In avoidance of continuing dispute, the petitioners [Halwoods] are in a better position to have the use of the land....” The Halwoods then asked the court to declare their “interest in the land valid.” Petition For Modification at 3. Without doubt, the petition for modification presents the same claim involving the same land as that in Bedoni v. Halwood, id. Even the parties in the two cases are the same.
The Halwoods contend that the cause of action in their petition arose after rendition of judgment in Bedoni v. Halwood, id. Like the district court, we are not persuaded that the Halwoods have presented a cause of action different from that in Bedoni. The two causes of action are identical with the court being asked to decide in both cases the ownership of the land.
Even the alleged facts in the petition for modification do not support a new cause of action against either Mr. Badonie or his estate. No injury to the Halwoods is apparent from Mr. Badonie's personal decision not to enforce the October 6, 1981 judgment; nor is there injury apparent to the Halwoods due to the BIA's failure to issue a land use permit to Mr. Badonie or to cancel the Halwoods' permit. Mr. Badonie's decision to make no use of the land certainly does not cause injury to the Halwoods who were found not to have an interest in the land. Mr. Badonie's residence off the land is a fact relevant only to the original suit. Finally, improvements made by the Halwoods to the land was a fact presented to the court in Bedoni so that fact is not proper to the petition.
For all these reasons, we hold that the petition for modification is merely an attempt to relitigate the same claims involving the same land between the same parties as in Bedoni v. Halwood, CH-CV-112-81; thus, res judicata bars the petition for modification. The district court did not abuse its discretion by dismissing the petition for modification.
The judgment of the district court is affirmed.
. Nowethalie Badonie's name is spelled differently in the prior cases, but they refer to the same person. Mr. Badonie died on March 8,1982 "and a petition for probate was filed in December, 1985.” Estate of Nowethalie Badonie, CH-CV-246-85 (Chinle D. Ct.). | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502851/ | OPINION
Opinion delivered by
BLUEHOUSE, Associate Justice.
In this paternity action, Martha Descheenie appeals as insufficient a child support award of $100.00 per month ordered by the Tuba City District Court for her daughter Ranee. Descheenie also asserts on appeal that the Tuba City District Court abused its discretion by not granting her request for past child support covering the period from Ranee's birth to the date of this suit.
I
Martha Descheenie is the natural mother of Ranee Marie Mariano, who was born out of wedlock on April 30,1984. Delbert Mariano admits that he is Ranee's father. Both parents are enrolled resident members of the Navajo Nation. Descheenie and Mariano are both employed with the Peabody Coal Company in Kayenta, Navajo Nation (Arizona). Mariano's salary is $1,907.84 per month net and Descheenie's salary is approximately $2,300.00 per month net. Since Ranee was bom, Descheenie has given birth to another daughter, Heather. Descheenie receives $400.00 each month from Heather's father for Heather's support. Delbert Mariano has another biological child born of a marriage with a Katherine Mariano. Mariano pays his ex-wife a court ordered amount of $225.00 each month to support this son. Mariano currently lives with a third woman who has two children. Mariano introduced no evidence regarding this woman's income, if any, or who supports her children.
Descheenie's testimony at trial regarding past care and support expenses for Ranee was conflicting, but the amount is somewhere between $13,000.00 and $16,360.00. Descheenie estimated at trial that Ranee's current monthly expenses total $450.00, but when she itemized the expenses, the total was $507.00. The *27monthly expenses include clothing, child care, toiletries, toys, medical expenses, and groceries. As the second child, Heather uses many of the items listed as expenses for Ranee, such as clothing, toys, and baby equipment. The monthly day care cost has remained the same for both girls as it was for Ranee alone.
Descheenie filed a Petition for Paternity in the Tuba City District Court on July 19, 1986. On April 2, 1987, the district court issued the Final Decree of Paternity. The decree stated that Delbert Mariano is the natural father of Ranee, and that the parents axe awarded joint custody. The court set up a visitation schedule, and ordered Mariano to pay $100.00 per month for Ranee's support. The district court did not address the issue of past child support.
Descheenie filed a notice of appeal on May 4, 1987. This Court granted the appeal on July 2, 1987, on the following issues: (1) Whether the district court abused its discretion in awarding $100.00 a month in child support in this paternity action; and (2) Whether past child support should be awarded in a paternity action. On the first issue, we reverse the district court's child support award and remand for a new trial to determine a new child support amount in conformity with the guidelines set out below. On the second issue, we hold that a Navajo district court shall not award past child support in a paternity action.
II
The Navajo Tribal Code does not contain provisions on paternity actions or on how to determine child support amounts. We realize that we are treading on legislative ground by setting up these guidelines. However, in the absence of Tribal Council action, we must do our best to fairly resolve the disputes that come before us, and establish a uniform pattern for resolving those disputes. This is not the first time we have set guidelines when the Tribal Council has failed to legislate. See Sells v. Sells, 5 Nav. R. 104 (1986). The dominant principle in suits involving children is always the best interests of the child. Barber v. Barber, 5 Nav. R. 9, 12 (1984). The court must always act as the parent of the child and it must act in the best interests of the child. Id. at 12. This rule imposes upon the district courts a duty to ensure that child support amounts take precedence over other bills that the obligated parent must pay. The record shows that the district court gave Mariano's other bills priority over the amount to be paid as Ranee's support. A court that gives priority to an obligated parent's other bills will naturally reduce the amount which should be paid to the child as support. We find from the record that that is exactly what occurred in this case. As a result, we find that the district court abused its discretion by failure to abide by the best interests of the child rule.
We have said that Navajo custom obligates each Navajo parent to provide for the support of his or her child. Notah v. Francis, 5 Nav. R. 147, 149 (1987). Navajo custom also requires each parent to contribute his or her reasonable share toward the child's support, according to each parent's income and resources. See *28Tom v. Tom, 4 Nav. R. 12, 13 (1983). The support award can be consistent with the lifestyle the child is accustomed to. However, the awarding court must not order a parent to pay so much child support that the parent has insufficient money to live on. Joe v. Joe, 1 Nav. R. 320, 323 (1978). A court must make child support awards such that each parent bears an appropriate amount of responsibility for the child, while keeping in mind that for the child to prosper, the parents also must prosper.
Because the mother has been granted custody of the child in most of our cases, the language in our case law is directed toward the father, and many fathers feel that because they are the ones turning money over to the mother, they, as the fathers, are the only ones paying to support the child. This misplaced belief has resulted in many custody disputes by parents who want custody of the child only in order to avoid making monthly payments of support to the other parent. Through the application of a formula that we have set forth below, and by not allowing the custodial parent any “credit” for having custody of the child, the falsehood that the custodial parent malees no financial contribution to the child's support will no longer be perpetuated.
The formula allows the calculation for each parent, whether custodial or noncustodial, to remain essentially the same. Begin with each parent's monthly net income. Net income is the amount of income left after all mandatory taxes and social security (FICA) are subtracted. If a parent receives child support for another child, that is not added into the net income. From the net income, subtract as adjustments only those amounts for court ordered support of other children, alimony, special medical or educational needs of a child, and expenses for the basic necessities of the parent, such as food and shelter. In an appropriate case supported by competent evidence, other adjustments may be allowed within the discretion of the district court. The custodial parent gets no adjustment for having custody of the child.
Once those adjustments have been made for each parent, the amount remaining, the adjusted net income, is added to the adjusted net income of the other parent. The result is the combined adjusted net income of both parents. To determine the percentage of support each parent has a duty to pay, divide that parent's adjusted net income by the combined adjusted net income figure. For example, mother's net income per month is $2,200.00. After adjustments, her income is $500.00. Father's net income per month is $2,000.00. After adjustments, his income is $400.00. The combined adjusted net income is $900.00. The percentage of support the mother must pay is 500 divided by 900, or 56%, and the percentage the father must pay is 400 divided by 900, or 44%.
The amount of child support a child receives each month is not determined by how much the parents say they can afford. To determine the appropriate support amount, the district court must consider the reasonable needs of the child. These may include food, clothing, health needs, child care, and educational expenses, such as paper, writing instruments, et cetera. The monthly support amount the *29district court arrives at is then multiplied by the percentage each parent is responsible for in order to calculate the dollar amount each parent pays each month to support the child. If the district court determines that the reasonable needs of a child will be met with $400.00 per month, the mother in the example given above would be responsible for 56% of $400.00, or $224.00 per month. The father in the example given above would be responsible for 44% of $400.00, or $176.00 per month. A parent may not substitute in-kind contributions for support money except by court order or agreement of the parties. Notah v. Francis, 5 Nav. R. 147, 150 (1987). Also, because children generally become more expensive as they grow older, the custodial parent may go back to district court in the future to have the court recalculate the support amount.
In establishing this formula, we are mindful of the vast spectrum of social and economic groups existing within the Navajo Nation. The parent who lives in a hogan and raises livestock cannot contribute to a child's support in the same manner as a parent who earns $22,000.00 per year at a coal mine. The formula we establish today is to be used in determining child support for a child whose parents both earn incomes outside the home. This formula is intended to place the stone foundation for the judges in the district courts to be guided by and to build upon. To a great extent, what is used to complete the structure is in the discretion of the district court.
Ill
We now address the issue of whether a district court shall award past child support in a paternity action. While we recognize a parent's obligation to support his or her children, and we realize that the state of Arizona allows awards for past support, the Navajo Nation has a unique set of circumstances which make this type of relief inappropriate and unenforceable.
First, unlike the state of Arizona, the Navajo Nation has no statute which authorizes an award for past child support in a paternity action. Even though Mariano knew that Ranee was his child, and he was aware that Descheenie wanted him to pay support, Mariano had no fair warning that he would be legally accountable for years past.
If a statute authorizing past support existed then Mariano could be held to have been impliedly warned of his duty to pay such past support. Due process under the Navajo Nation Bill of Rights, 1 N.T.C. § 3 (1986 amend.), and the Indian Civil Rights Act, 25 U.S.C. § 1302(8) (1968), dictates that Mariano not be ordered to make up for something which he had no legal duty to do originally.
Second, determining how much the child should receive for past support would plunge the district court into a quagmire of speculation. Very few, if any, parents keep receipts of all purchases made, or records on money spent, for the benefit of their children. Our courts do not base their awards on the guesswork of litigants. See Wilson v. Begay, 6 Nav. R. 1 (1988); Hall v. Arthur, 3 Nav. R. *3035 (1980). As an example, in this case the total past expenses for Ranee range anywhere from $13,000.00 to $16,360.00. Descheenie's testimony at trial on past child support expenses for Ranee was confused and contradictory. Confused and contradictory evidence will only lead a district court to speculate on an award, especially where the number of years for which back support is requested is large.
Third, economic conditions in the Navajo Nation also influenced our decision not to allow past support in paternity actions. Many of our people are jobless, and statistics have shown that the per capita income for Navajo people living within the Navajo Nation is less than $4,000.00 per year. A court cannot award a custodial parent past child support for ten years, or even for three years, and expect the non-custodial parent to be able to pay off the balance. The monthly award for present and future support will be enough of a financial commitment for a parent to handle. A Navajo parent ordered to pay past support of $15,000.00 will be cast into huge financial debt.
No parent will be expected to pay 100% of a child's expenses. However, if a parent wants the child's other parent to take responsibility for a portion of the child's support, that parent must file an action for paternity and support as soon as possible after the child's birth. In this manner the child will be assured support from an early age. Petitions for paternity and child support cases, like all other lawsuits, take many months and sometimes years to be fully resolved.
Our holding that past support cannot be awarded in a paternity action will not affect in any way cases involving arrearages due from non-custodial parents who have disobeyed court orders to pay monthly support amounts. We note that a custodial parent who intends to collect on a past due court ordered support amount, like the unwed mother seeking child support, should initiate a lawsuit as soon as possible to avoid large arrearages. In this way, neither party will suffer irreparable financial difficulty.
The request for past child support in this paternity action is denied. The issue of current child support is remanded to the district court for a new trial to determine an appropriate amount using the formula set forth above. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502852/ | OPINION
Opinion delivered by
TSO, Chief Justice.
I
This case arises from Amigo Chevrolet's petition for repossession of a truck bought by Robert and Phoebe Lee, who were delinquent in payments. The Lees filed a counterclaim under the Navajo repossession laws, 7 N.T.C. § 607-610, for statutory damages arising from an earlier repossession by Amigo Chevrolet of the same vehicle without written consent or court order. The issue on appeal is whether a form document, entitled “Unconditional Release of Vehicle” and signed by Lee at the time the truck was returned to him, constituted a valid release of Amigo Chevrolet from any and all claims arising out of the repossession, including claims from illegal, self-help repossession. The Crownpoint District Court held that the release was invalid. It granted the Lees' counterclaim and denied the petition for repossession. We affirm the judgment of the district court.
The Lees bought the truck on October 6,1984, and signed an installment sales contract. In November 1986, the Lees were three months delinquent, and on November 26, 1986, an agent of Amigo Chevrolet took the truck from where Mrs. Lee worked, which was within the territorial jurisdiction of the Navajo Nation, without the written consent or court order required by 7 N.T.C. § 607. Two days later, Mr. Lee retrieved the truck from Amigo Chevrolet after paying the delinquent amount and signing the form reproduced below in its entirety:
*32
UNCONDITIONAL RELEASE OF VEHICLE
Having met the requirements of AMIGO CHEVROLET, INC., to release my 1984 Chev. 1/2 T SWB, I do hereby affirm by my signature that the vehicle has been returned to me in the same condition it was prior to repossession, and all personal property remains intact, and has been returned to me. I release AMIGO CHEVROLET, INC., from any and all claims arising out of the repossession. This has been explained to me, and I do understand what it means.
The transcript of testimony at the district court hearing indicates that Mr. Lee believed the form was only for release of the truck. Tr. at 29, 30. He did not understand it to contain any waiver of future claims. Tr. at 33. He did not intend to settle any claims. Tr. at 34. There was no evidence presented that at the time the release was signed the parties negotiated or bargained for an agreement concerning claims under the Navajo repossession laws, nor that there was any discussion of demanding accelerated payment or rewriting the contract for lower payments. On the contrary, testimony by petitioner's witness indicates only that the release was presented to Lee for his signature and that he was asked if he understood it. Tr. at 16, 17. Having no questions, Lee signed it. Id.
The Lees stopped making any payment on the truck after January 20, 1987. On March 5, 1987, more than three months after the date of the release, the parties rewrote the contract for smaller payments. Based on the delinquency of payments under this rewritten contract, Amigo Chevrolet petitioned the district court on June 4, 1987, for repossession.
II
The Navajo repossession laws strictly provide that the personal property of Navajos shall not be taken from the territorial jurisdiction of the Navajo Nation without the written consent of the purchaser at the time repossession is sought or by order of a Navajo Nation district court. 7 N.T.C. § 607. If Section 607 is violated, a civil liability of not less than 10 percent of the cash price plus the finance charge is provided at 7 N.T.C. § 609.
The Navajo repossession laws are the result of a necessary exercise of tribal sovereign powers and are designed to protect the health, safety, and welfare of Navajo Nation citizens. Babbitt Ford, Inc. v. The Navajo Indian Tribe, 710 F.2d 587, 593 (9th Cir. 1983). In its resolution and minutes of February 7, 1968, the Navajo Tribal Council voiced its concerns about self-help repossession. The Navajo Tribal Council enacted the Navajo repossession laws to avoid breaches of peace and possible violence. It sought to protect the Navajo members who would be left stranded in remote areas of the reservation. The Navajo Tribal Council also specifically intended to protect Navajo citizens from contractual overreaching and to provide each member an opportunity to have a day in court before their property was taken. The intention of the Navajo Tribal Council is *33well documented in Russell v. Donaldson, 3 Nav. R. 209 (Window Rock Dist. Ct. 1982), which, in tandem with N.U.C.C. § 9-501(3), established the rule that written consent must be obtained at the time of the repossession and may not be waived through prior agreements, such as security agreements made at the time of purchase. This Court agrees with the rule established in Donaldson.
This Court favors settlement agreements of disputed claims between parties in order to avoid litigation in the courts when they are fairly made as the result of negotiation and bargaining and do not contravene public policy. A release of claims under the Navajo repossession laws made as part of a settlement agreement after an illegal repossession has occurred does not further infringe on the public interest, but any such waiver of claims under the Navajo repossession laws will be scrutinized closely by the Navajo courts to ensure that the agreements were made openly and fairly. Such close scrutiny is necessary in order to ensure the same protection of consumers which the Navajo repossession laws seek.
A release of claims as a part of a settlement agreement is contractual. Generally, a valid settlement, which includes a release of claims arising from the Navajo repossession laws, requires that the intention to discharge another from the claim be manifest, that mutual assent to a compromise reached through negotiation be evident, and that sufficient consideration exist to support the release.
A party can release a claim only if he knows that the claim exists and he intends to discharge the other. For this reason, form documents which do not specify claims being released and which form part of a general release of a vehicle are not likely to pass the close scrutiny necessary for waivers of the Navajo repossession laws. A valid release of claims arising from the Navajo repossession laws must be specifically entitled and state the claim being released. It must not be included in a general release form.
A valid settlement which includes a release of claims under the Navajo repossession laws is arrived at mutually by both parties through negotiation. In this case, there is no evidence of negotiation and mutual assent: Mr. Lee paid his delinquency, signed a form, and retrieved his truck. There is no indication that Mr. Lee intended to settle any claim arising from the illegal repossession nor that he had any knowledge of a claim under the Navajo repossession laws. Without the intention and knowledge, there can be no negotiation or meeting of the minds.
A release cannot be valid unless there is consideration given for the release. Amigo Chevrolet contends that its consideration amounted to (1) rewriting the contract at more favorable terms and (2) not demanding accelerated payment of the balance due. In fact, the contract was not rewritten until three months after the release was signed and the Lees had again become delinquent in payments. There is no evidence in the record or in the release itself that an accelerated payment was demanded and then withdrawn in order to serve as bargained-for consideration.
Appellant also argues that the written and signed words of the release are *34unambiguous and that the release may only be set aside by this Court if there is clear and convincing proof of misrepresentation, fraud, or mistake. This Court adopts this as a sound rule, but we cannot apply it in this case because we find the release to contain ambiguous language which is obscure, indefinite, and capable of more than one meaning. We cannot be certain that claims under the Navajo repossession laws were intended to be released nor that any consideration existed to support the release. Such language is not included. Nor are we helped by the title of the release which purports that the document is a release of a vehicle, a release very different from the one alleged by Amigo Chevrolet. The language is general and written for a wide range of releases from claims due to damage, loss, or other injuries following a presumably legal, self-help repossession.
In the present case, the evidence does not support a valid release as part of a settlement agreement. The decision of the Crownpoint District Court is hereby affirmed. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502853/ | OPINION
Opinion delivered by
BLUEHOUSE, Associate Justice.
This case comes before this Court on appeal for the second time. Appellant first appealed the April 10, 1987, final judgment of the Shiprock District Court, which settled a land dispute at the request of appellant that was at the center of the consolidated actions for permanent injunction and forcible entry and detain-er. On appellant's motion, this Court dismissed the first appeal on September 10, 1987. Benally v. Holtsoi, A-CV-18-87.
On July 27, 1987, appellant filed a motion to reconsider the April 10, 1987, judgment of the district court, citing Rule 23 of the Navajo Rules of Civil Procedure. Rule 23 provides that
[a]t 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.
The Shiprock District Court denied appellant's motion for reconsideration on December 1,1987. The district court found the motion untimely pursuant to Rule 8 of the Navajo Rules of Civil Appellate Procedure (1987). The district court regarded the motion for reconsideration as a post-judgment motion and thereby inferred that the motion for reconsideration was subject to the same 30-day filing requirement as the motions specifically recognized in Rule 8(b).1 Despite the untimeliness of the motion, the district court reviewed its decision on the merits. *36It found no basis for error in its application of the law. Furthermore, the district court found that the appellant had not challenged the factual findings of the district court. Appellant appealed the district court's denial of his motion for reconsideration on December 30, 1987.
The issue before this Court is whether the motion for reconsideration continues to exist as post-judgment relief in civil cases. We hold that the motion for reconsideration was abolished under the Navajo Rules of Civil Appellate Procedure, adopted on March 1, 1987. We therefore dismiss the appeal.
Under Rule 5(d) of the Navajo Rules of Appellate Procedure (1978), the motion for reconsideration was required before civil appeals could be heard. Thus, it was necessary that the motion for reconsideration be timely filed. In practice, however, the motion for reconsideration was procedurally confusing and led to adverse effects on the timeliness of appeals. For example, practitioners often filed motions for reconsideration with the district court on the same date that they filed notices of appeal, thereby creating confusion as to which court had proper jurisdiction. Often, judges failed to rule on motions for reconsideration within five days as required by Rule 5(d) of the Rules of Appellate Procedure (1978). For these reasons, it was omitted and no longer recognized under the Rules of Civil Appellate Procedure (1987).
The Rules of Civil Appellate Procedure expressly recognizes under Rule 8(b) only the post-judgment motions for judgment notwithstanding the verdict, to amend or add findings of fact, to alter or amend the judgment, and for new trial. These post-judgment motions, but not the motion for reconsideration, will be included in the revised Navajo Rules of Civil Procedure due to be adopted soon. The current Navajo Rules of Civil Procedure expressly recognizes under Rule 23 only the post-judgment motion to re-open judgments at the discretion of the judge. A Rule 23 motion differs from other post-judgment motions which are subject to time limitations.
Unlike other jurisdictions, the motion for reconsideration existed as a distinct motion from the other post-judgment motions cited above, appearing to have its origin in Navajo tradition predating the 1978 Navajo appellate rules. Under the 1978 appellate rules, the motion for reconsideration derived its authority solely from Rule 5(d), which required that the motion be filed as a prerequisite to filing an appeal, and it was not raised pursuant to Rule 23. Unlike the motion for reconsideration, a Rule 23 motion can be filed at any time. We hold that the motion for reconsideration has been abolished and cannot be raised as a Rule 23 motion.
This Court will next determine whether the motion appellant filed was really a motion to re-open a judgment “in order to correct errors or to consider newly-discovered evidence, or for any other reason consistent with justice” pursuant to Rule 23.
As grounds for his motion “that the Court reconsider its decision under Rule 23,” appellant states that the decision is contrary to statutory rules and case law decisions regarding decisions by grazing committees. Clearly the appellant did *37not ask the court to consider newly-discovered evidence. The error that the district court is asked to correct is that it failed to include findings of fact and conclusions of law on issues that never arose during the litigation and upon which no decision was made. Appellant cannot now complain through a Rule 23 motion that the decision and the hearing were improper when the appellant himself requested the district court to hold the hearing and decide the dispute. Appellant's brief in support of the motion presents a question of law more appropriate to appellate argument than the correction of errors under Rule 23 which this Court contemplated in Zion's First National Bank v. Joe, 4 Nav. R. 92 (1983):
Normally, a judge should not consider modifying or vacating a judgment without very serious reasons for doing so and without a specific written motion asking him or her to do so. Of course there may be times when the court discovers a lack of jurisdiction, gross fraud or the need to clarify a judgment without an adverse hearing, but those times are rare....
Id. at 93. Because the appellant offered neither an appropriate basis for correction of errors under a Rule 23 motion nor any newly-discovered evidence, the district court properly denied his motion.
Appellant's appeal from the denial of his motion for reconsideration is therefore dismissed.
. Under the revised Navajo Rules of Civil Procedure soon to be adopted, the filing deadline for these post-judgment motions will be set for a period less than the current 30-day requirement. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502856/ | OPINION
Opinion delivered by
BLUEHOUSE, Associate Justice.
Joe Thomas, a Navajo who resided within the territorial jurisdiction of the Navajo courts, was survived by eight adult children, including the appellant, Dorothy James, and the appellees, Ray Thomas and Art Lee Thomas. Dorothy James appeals the district court's award of a livestock grazing permit, containing 193 sheep units, to the appellees on a joint undivided basis. Appellees were awarded the permit after the court found that an oral will devising the permit to the appellees was valid because it met the requirement that the immediate family be present and agree. The alleged oral will was made in the presence only of the appellees, who resided with their father. None of the other children resided at the homesite of their father. The court determined that the appellees constituted the immediate family to the exclusion of all other children. The issue before this Court is whether the immediate family rule excludes the children who do not reside with the testator and therefore validates oral wills made in the presence of only those children who reside with the testator. We clarify the immediate family rule and hold that all children of the testator, including the spouse if alive, must be present in order for an oral will to be valid. We therefore reverse the judgment of the district court and remand for findings on intestate succession of the permit.
I
Probate proceedings in this case began in April 1984 with the appointment of heir Mary T. Silversmith as administratrix of the estate. In July 1984, the administratrix filed a “Final Accounting and Proposed Distribution” of all property of the decedent. It proposed awarding 27 sheep units of the grazing permit to Dorothy James and 166 sheep units to Art Lee Thomas and Ray Thomas. At the *52request of the administratrix in December 1984, a hearing was scheduled on dividing the grazing permit due to disagreement among the heirs. No other portion of the proposed distribution was contested. The appellees filed a claim in April 1985 for the grazing permit “in accordance with the wishes of the decedent.” In November 1985, heirs Mary Cowboy, Dorothy James, and Mary T. Silversmith filed claims for divided portions of the grazing permit. A hearing took place in February 1986. Briefs were requested from the administratrix and the appellees, and the district court's order was subsequently filed in December 1986.
The district court found that Ray Thomas and Art Lee Thomas lived in the same camp or household as the decedent prior to his death; that they provided constant care to their father by providing firewood, water, livestock feed, and food; and that all other heirs resided elsewhere.1 Documents in the record show that the other children lived nearby in the same community and in Gallup and Tohatchi. Dorothy James, in whose home the decedent received final care and died, was a long-time resident of Tohatchi. The “Final Accounting and Proposed Distribution” provides the best evidence of the appellees' co-residence with their father at the homesite.
II
The question of who constitutes the decedent's immediate family has been the subject of previous opinions by Navajo courts. See, e.g., In the Matter of the Estate of Boyd Apache, 4 Nav. R. 178 (Window Rock Dist. Ct. 1983); In the Matter of the Estate of Chisney Benally, 1 Nav. R. 219 (1978); and In the Matter of the Estate of Ray Lee, 1 Nav. R. 27 (1971). In each of these cases, the courts applied Navajo custom, as provided by 8 N.T.C. § 2(b) (1978), to determine the appropriate immediate family. Enacted in 1959 and never amended, Section 2(b) provides that the court shall apply the Navajo custom as to inheritance, if such custom is proven, in order to determine the heirs.
The Navajo custom of intestate distribution is outlined in Estate of Apache, 4 Nav. R. at 182-83. Productive goods remained with the camp and the supervised distribution of nonproductive goods was made during a gathering of decedent's children, other immediate family members, and other relatives not living in the camp. Id. Distribution of nonproductive goods was based on immediacy to decedent and need. Id. The children were always provided for. Id. The immediate family included both the children and other relations who co-resided with the decedent:
*53It must also be understood that the Navajo clan system is very important, with a child being of the mother's clan and “born for” the father's clan. The clan is important, and the family as an economic unit is vital. The Navajo live together in family groups which can include parents, children, grandparents, brothers and sisters .... Some call these family and clan members living together a “residence group,” and some call them a “camp."
Id., citing Shepardson and Hammond, “Navajo Inheritance Patterns: Random or Regular?” 5 Ethnology 87, 90 (Jan. 1966) and Barsh, Navajo Property Law and Probate, 1940 -1972 (unpublished manuscript).
This was the customary distribution of a decedent's property and is still practiced today. We can find no record of testamentary succession, either written or oral, in Navajo custom before the introduction during the middle of this century of the Anglo-American legal concept of succession through designation in a will. See, e.g., 3 N.T.C. § 785(1) (a 1946 statute providing for the designation of a successor to a grazing permit through a will). In 1971, however, Estate of Lee recognized “a well-established custom that a Navajo may orally state who shall have his property after his death when all of his immediate family are present and agree.” 1 Nav. R. at 31.
Following Estate of Lee, the Navajo courts recognized the validity of an oral will when it is made by the testator in the presence of all of his or her immediate family and all members of the immediate family agree that the testator orally made known his or her last will before them. We hold today that the immediate family includes all of the children of the testator and the spouse if alive.
A rule which requires all the children of Joe Thomas to be present in order to validate an oral will and not merely the two who co-resided with him is supported by custom and case law. As discussed above in Estate of Apache, custom always included the children of the deceased in intestate succession, and the court included the decedent's child in the immediate family even though the child lived apart from the deceased. 4 Nav. R. at 183. The Court in Estate of Lee held that the immediate family must include the wife and children; their resident status was not at issue. 1 Nav. R. at 32. The Court in Estate of Benally included all the children of the decedent's current marriage as his immediate family; their resident status was also not at issue. 1 Nav. R. at 222. The resident status of the children of the decedent's former marriage, however, was at issue in Estate of Benally, and the Court did not consider them as members of decedent's immediate family. Id. We overrule that part of the decision in Estate of Benally which excluded the children from a previous marriage who did not reside with the testator from being considered members of the immediate family in order to adopt a strict rule that all children of the deceased constitute the immediate family.
In its opinion in Estate of Benally, the Court appeared to adopt as obiter dictum language from other state jurisdictions that defined immediate family in terms strictly of living together in the same household. Under Anglo-American law, this would require all heirs to live under the same roof. The effect of the *54same household rule adopted in Estate of Benally is to essentially eliminate from the immediate family those children of the testator who do not reside under the same roof as the testator. Such a rule is inconsistent with the Navajo custom which teaches that parents should view each of their children equally. The opinion did not consider Navajo custom in designating immediate family heirs as required by statute.
The Court in Estate of Benally adopted this rule in order to limit the hardship of requiring the presence of the Navajo extended family to validate oral wills. 1 Nav. R. at 223. It recognized the need in the Navajo Nation of an alternative to a written will. Id. The need for an oral will must be balanced, however, with the protection of all of the decedent's heirs. The children of the decedent are not merely members of his or her extended family but constitute his or her immediate family.
In the present case, the immediate family of Joe Thomas includes all of his eight children, whether or not they resided with him at his homesite.2 Because not all of those children were present at the time the alleged oral will was made, there is no valid oral will. We therefore reverse and remand for further determinations consistent with Navajo laws of intestate succession of grazing permits.
. We note that the court enumerates seven heirs at one point and six at another. The court also finds that decedent orally devised his grazing permit to Ray Thomas and Art Lee Thomas, that this was done in the presence of Ray Thomas, and that other heirs were not present when decedent orally devised the permit. See Finding of Fact no. 8. If such were the case, there could be no valid oral will under any interpretation of the immediate family rule, but no one argues that Art Lee Thomas was not also present.
. In this case, this would include Mary A. Silversmith, who is listed by the administratrix as an heir but was not included as an heir in the district court's findings, apparently because she was born by a different mother and did not reside with the decedent. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502857/ | OPINION
Opinion delivered by
BLUEHOUSE, Acting Chief Justice.
This case comes before this Court on appeal for the second time. In this and other respects, this case is similar to Benally v. Holtsoi, 6 Nav. R. 35 (1988). Here appellant first appealed the January 25, 1988 order of the Shiprock District Court, which dismissed the civil complaint and motion for restraining order for lack of jurisdiction. On March 17, 1988, appellant's appeal was dismissed for lack of jurisdiction for failure to comply with the requirements of Rule 7(a) of the Navajo Rules of Civil Appellate Procedure (1987). Joe v. Atkins, 6 Nav. R. 8 (1988). Appellant failed to attach a certified copy of the district court's final order to his notice of appeal. The appeal, therefore, was not perfected.
Concurrent with filing the first notice of appeal, appellant filed in the district court a motion for reconsideration of the January 25, 1988 order. Appellant's motion for reconsideration sought “to reopen the case pursuant to Rule 23, Rules of Civil Procedure, for reconsideration and correction of the order of January 25, 1988.” The district court dismissed the motion for reconsideration on April 7, 1988, and ruled that motions for reconsideration were abolished under the Navajo Rules of Civil Appellate Procedure. Appellant filed his second notice of appeal from the denial of his motion for reconsideration on May 6, 1988. We affirm the decision of the district court. The motion for reconsideration has been abolished by the Navajo Rules of Civil Appellate Procedure and may not be raised under Rule 23 of the Navajo Rules of Civil Procedure. Benally v. Holtsoi, 6 Nav. R. 35 (1988).
This Court would have addressed the issue of jurisdiction on the merits of appellant's argument at the time of the first appeal if appellant had perfected his *56notice of appeal. This Court lost jurisdiction to hear an appeal from the dismissal order entered on January 25, 1988.
Appellant's attempt to argue the legal issues and merits of his original complaint and to reargue his earlier position on the jurisdictional issue, which may be proper in appellate review, is improper as a Rule 23 motion to the district court to reopen its judgment that it lacked jurisdiction. The motion offered no new evidence or basis for correcting errors in the district court's dismissal for lack of jurisdiction. The motion only offered unsupported allegations of prejudice and conspiracy against judicial officers, perjury and trespass by the defendants, and wrongful discharge. Appellant, therefore, did not provide any rational basis for a motion to reopen a decision dismissing the case for lack of jurisdiction, but instead presented matters and issues not properly before the district court. The Rule 23 motion is not designed to avoid the consequences of a failure to perfect an appeal. See Chavez v. Tome, 5 Nav. R. 183, 188-189 (1987).
The appeal is therefore dismissed. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502858/ | OPINION
Opinion delivered by
CADMAN, Associate Justice.
This matter comes before the Supreme Court on appeal from the lower court's order dismissing the appellant's action with prejudice for lack of jurisdiction.
This Court must address three issues in this appeal. The first issue is whether the district court had subject matter jurisdiction over this cause of action pursuant to one of the exceptions set forth in the 1980 Navajo Sovereign Immunity Act. The second issue is whether the Navajo Nation's filing of a compulsory counterclaim in its answer waives its sovereign immunity from suit. The third issue is whether the Navajo Nation violated the appellant's civil rights by dismissing the suit.
I
On November 17, 1981, the Navajo Nation drafted a contract with MandanTBI (joint venture partners) to have a shopping center built in Tuba City, Arizona for $2,639,000.00. On January 5, 1982, the Budget and Finance Committee of the Navajo Tribal Council passed Resolution BFJA-5-82, approving the contract between the Navajo Nation and Mandan-TBI to construct the Tuba City Shopping Center.1 Chairman Peter MacDonald signed the contract on January 8, 1982.
*58After TBI began construction, the Navajo Nation discovered an error in the topographical elevation of the shopping center.2 On March 3, 1982, the Navajo Nation authorized a “Change Order” directing TBI to raise the elevation of the shopping center by four (4) feet.3 TBI corrected the elevation as directed by the Navajo Nation. TBI alleges that the Navajo Nation also directed additional testing and removal of concrete. However, the record shows no change order for the additional testing and removal of concrete.
TBI requested additional payments of $140,453.00 for the change in the topographical elevation and $62,300.37 for the additional testing and removal of concrete. The Navajo Nation refused to make additional payments for the change order due to the surveying error on the part of a third party subcontractor hired by Mandan-TBI. The Navajo Nation refused to malee additional payments for TBI's alleged testing and removal of concrete as there was no change order made or approved.
After the Navajo Nation refused to make additional payments for the change order, TBI filed the first case (WR-CV-174-84) on April 25,1984, in the Window Rock District Court of the Navajo Nation. On July 2, 1984, the Navajo Nation filed an answer and a compulsory counterclaim. The counterclaim alleged that TBI had breached the contract by unsatisfactorily performing numerous items.4 The Navajo Nation also claimed that due to TBI's breach and inability to complete the construction within the time authorized, the Navajo Nation lost rent, suffered damage to its reputation with numerous funding sources, was forced to retain other firms to test TBI's work and will be forced to spend more money to correct the defective work and complete the job as was required by the contract. The Navajo Nation prayed for $176,612.00 in damages in its counterclaim.
On August 16,1984, the district court scheduled a hearing for October 3,1984; notice was sent to both parties. On October 3, 1984, neither party appeared for the scheduled hearing. The court then dismissed the first case and the counterclaim with prejudice. On October 15,1984, TBI filed a motion to reopen the case which had been dismissed on October 3, 1984. On November 27, 1984, the *59Navajo Nation filed a motion to dismiss the first case for lack of jurisdiction. The Navajo Nation claimed in its motion that the case was barred by the Navajo Sovereign Immunity Act.
On July 2, 1984, TBI filed the second case (WR-CV-274-84) alleging that the Navajo Nation failed to pay for the additional testing and removal of concrete performed by TBI. On October 5, 1984, the tribe filed an answer and a compulsory counterclaim. The compulsory counterclaim in the second suit was substantially the same as in the first case. On November 21,1984, the Navajo Nation filed a motion to dismiss the second case for lack of jurisdiction, claiming that the case was barred by the Navajo Sovereign Immunity Act.
On December 5,1984, the court, by stipulation of the parties, entered an order consolidating the two cases. The court also set aside the order dismissing the first case.
On September 6, 1985, the court scheduled a pre-trial conference for October 10, 1985; notice was sent to both parties. TBI failed to appear at the October 10, 1985 pre-trial conference. On October 14, 1985, the court dismissed the consolidated action with prejudice for lack of jurisdiction and dismissed the counterclaims without prejudice. The district court found that the action was barred by the 1980 Navajo Sovereign Immunity Act. The record shows no reason given for TBI's failure to appear at the October 14, 1985 pre-trial conference.
TBI received notice of the dismissal on October 18, 1985, and filed both a motion for reconsideration with the district court, and a notice of appeal with this Court on November 14, 1985. On November 15, 1985, the district court denied the motion for reconsideration.
II
This Court recognizes the right of the Navajo Nation to assert the defense of sovereign immunity in suits brought against it. Dennison v. Tucson Gas and Electric Co., 1 Nav. R. 95 (1974); Halona v. MacDonald, 1 Nav. R. 189 (1978); Keeswood v. The Navajo Tribe, 2 Nav. R. 46 (1979). This Court also recognizes certain exceptions to the defense of sovereign immunity. Sovereign immunity does not extend to protect tribal officials who act outside the law. Halona, 1 Nav. R. at 202. In this case, originally filed in the district court on April 25,1984, the 1980 enactment of the Navajo Sovereign Immunity Act, 7 N.T.C. §§ 851 to 855, will determine whether the Navajo Nation waived its immunity from suit. Under the 1980 Navajo Sovereign Inununity Act, the Navajo Nation may be sued in Navajo courts: (1) when explicitly authorized by federal laws or regulations; (2) when explicitly authorized by resolution of the Navajo Tribal Council; (3) with respect to any claim for which the Navajo Nation carries liability insurance; (4) to compel any officer, employee or agent of the Navajo Nation to perform his or her responsibility under the laws of the United States and the Navajo Nation; and (5) for attorney malpractice if authorized by the Advisory Committee of the *60Navajo Tribal Council. 7 N.T.C. § 854(a), (b), (c), (d), and (e) (1983 Supp.). The appellant relies only on Section 854(a), (b), and (d) in this appeal.
A
TBI first argues that it should be allowed to sue the Navajo Nation under the federal laws or regulations exception to the Navajo Sovereign Immunity Act. 7 N.T.C. § 854(a). TBI claims that the Indian Civil Rights Act (ICRA), 25 U.S.C. §§ 1301 to 1303, is the federal law which authorizes this suit against the Navajo Nation. TBI's claim has, however, been considered and rejected by both this Court and the United States Supreme Court.
In Santa Clara Pueblo v. Martinez, the United States Supreme Court ruled that the ICRA did not waive a tribe's immunity from suit. 436 US. 49, 59, 56 L.Ed. 2d 106, 115 (1978). Although Martinez, id., dealt with a suit against a tribe in federal court, we found the reasoning sound and followed it in Johnson v. The Navajo Nation, 5 Nav. R. 192, 199 (1987). In Johnson, we “agree[d] with the United States Supreme Court that the ICRA does not expressly waive the sovereign immunity of the Indian Tribes, including the Navajo Nation in any court.” The ICRA is federal law, which is applicable to the Navajo Nation, but it does not expressly waive the Navajo Nation's immunity from suit as required by our statute. Our statute requires the federal law or regulation relied upon to explicitly state that the Navajo Nation may be sued. 7 N.T.C. § 854(c). The ICRA is applicable to civil rights grievances brought against an Indian tribe. In this case, TBI's suits were brought as breach of contract actions against the Navajo Nation. Because this case is strictly a breach of contract action, TBI's argument that the tribe took its property without due process of law in violation of the ICRA is misplaced. Even TBI, in its brief, has reiterated numerous times that this is a breach of contract action. We hold that there has been no explicit congressional waiver of the Navajo Nation's sovereign immunity for this suit, and therefore, the suit may not proceed under 7 N.T.C. § 854(a).
B
TBI next contends that it can sue the Navajo Nation because this suit is explicitly authorized by resolution of the Navajo Tribal Council. 7 N.T.C. § 854(b). TBI claims that the Navajo Bill of Rights, 1 N.T.C. §§ 1-9 (1967), authorizes this suit. In addition TBI cites 7 N.T.C. § 204(a) (1977), as authorizing actions for violations of civil rights. 7 N.T.C. § 204(a) states that:
In all civil cases, the Court of the Navajo Tribe shall apply any laws of the United States that may be applicable, any authorized regulations of the Interior Department, and any ordinances or customs of the Tribe, not prohibited by such Federal laws.
*61We disagree with TBI's position that 7 N.T.C. § 204(a) authorizes suits against the Navajo Tribe if a violation of civil rights is asserted. Neither the Navajo Bill of Rights, 1 N.T.C. §§ 1-9, nor 7 N.T.C. § 204(a) explicitly authorizes suits against the Navajo Nation. We must follow the intent of the Navajo Tribal Council when interpreting the Navajo Tribal Code. As such, we may not construe the word “explicitly” as meaning anything other than an unambiguous expression, clear in understanding.
As we have already stated, this is a breach of contract action brought against the Navajo Nation, therefore, arguments of civil rights abuse under the Navajo Bill of Rights is inappropriate. TBI also did not sue for civil rights claims. Instead of arguing civil rights violations, TBI should have argued whether any provisions in the contract waived the tribe's immunity from suit.
We hold that, in this case, the Navajo Tribal Council has not waived the Navajo Nation's immunity from suit under the Navajo Bill of Rights, or 7 N.T.C. § 204(a), and therefore, the suit may not proceed under 7 N.T.C. § 854(b).
C
TBI finally contends that the Navajo Nation's sovereign immunity was waived pursuant to 7 N.T.C. § 854(d), which states “[a]ny officer, employee or agent of the Navajo Nation may be sued in the Courts of the Navajo Nation to compel him/her to perform his/her responsibility under the laws of the United States and the Navajo Nation.” The relief under this section of the Navajo Tribal Code is limited to declaratory or injunctive relief. TBI prays for money damages in its complaint, therefore, this section is inapplicable to the case at bar. We hold that, as this is a breach of contract action for money damages, the suit may not proceed under 7 N.T.C. § 854(d).
Ill
The second issue raised in this appeal is whether the Navajo Nation's filing of a compulsory counterclaim in its answer waived its immunity from suit. We hold that it did not. The 1980 Navajo Sovereign Immunity Act, 7 N.T.C. §§ 851 to 855, does not allow implied waivers of the Navajo Nation's immunity from suit. Only an unequivocally expressed waiver is allowed by the 1980 Navajo Sovereign Immunity Act.
We hold that, in accordance with the 1980 Navajo Sovereign Immunity Act, the waiver of Navajo immunity from suit must always be unequivocally expressed. See Santa Clara Pueblo, 436 U.S. 49, 56 L.Ed. 2d 106; United States v. U.S. Fidelity & Guart. Co., 309 U.S. 506, 84 L.Ed. 894 (1940). In the absence of expressed authorization, the doctrine of sovereign immunity should prevail. See U.S. Fidelity & Guaranty Co., 309 U.S. 506, 84 L.Ed. 894. Therefore, the filing of a compulsory counterclaim by the Navajo Nation does not waive its immunity from suit.
*62IV
The final issue in this appeal is whether the Navajo Nation violated the appellant's civil rights by asserting the defense of sovereign immunity, and thus barring the appellant's suits and any possible form of judicial relief. Just because TBI's suits are barred by the Tribe's immunity from suit does not turn these actions into a suit for violation of civil rights. The actions presented by TBI were strictly based upon an alleged breach of contract by the Navajo Nation. Neither have we found law that would allow this suit to proceed simply because TBI has asserted that because immunity from suit is a bar, its civil rights are violated. Even our review of the record has not turned up any civil rights violations. We hold that these actions were brought upon an alleged breach of contract; therefore, the allegations of violations of civil rights are meritless.
V
We would like to conclude that the Navajo Tribal Council must look forward to the goal of economic development in future amendments to the Navajo Sovereign Immunity Act. One of the most severe problems facing the Navajo Nation is that of unemployment caused by the lack of economic development within the Navajo Nation. One path in which the Navajo Nation may strengthen its economic base is by drawing companies onto Navajo Indian Country. If the Navajo Nation is to compete with the states for industrial and business contracts, the Navajo Tribal Council must allow for contractual waivers of the tribe's immunity from suit. The Navajo Tribal Council may achieve this contractual waiver of immunity from suit through an amendment to the Navajo Sovereign Immunity Act, or through the inclusion of individual waivers written into each contract. The Navajo Nation must realize that private corporations will not choose Navajo Indian Country to do business on, unless they know that they will have a forum in which they will receive a fair hearing in the event of a contract dispute.
The order of the district court dismissing the appellant's action, with prejudice for lack of subject matter jurisdiction, is affirmed.
. The resolution also set forth the funding for the Tuba City Shopping Center. The Economic Development Administration (EDA) granted $1,464,000.00; the Department of Housing and Urban Development (HUD) awarded a block grant of $903,820.00; Bashas Market, Inc., the anchor tenant for the shopping center, contributed $44,000.00; and the Navajo Tribal Council allocated matching funds of $174,180.00.
. The Navajo Nation asserts that a third party (Parker, Johnson and Associates, Consulting Engineers, Inc.) is responsible for the topographical error. And that the third party's error in surveying the construction site, preparing the topographical map and staking out the field resulted in the issuance of the change order.
. The "Change Order" signed on March 3,1982 stated:
You are directed to make the following changes in this Contract:
1. Change all elevations as indicated on the revised site plan dated 1/5/82 as prepared by Parker, Johnson & Associates on sheet C-5. Please proceed with the work immediately. Additional cost will be determined after proper negotiations on earthworks have been justified.
. Among the items that the Navajo Nation claimed were defective are: heaved floors, cracks in masonry, leaks in the roof, and un-square doorjambs. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502859/ | OPINION
Opinion delivered by
AUSTIN, Associate Justice.
Appellant Dennis Williams filed a motion, pursuant to Rule 5(b), NRCAP (1987), requesting an extension of time to file a petition for reconsideration of this Court's decision. Two questions must be answered to decide this motion: (1) when does the time begin to run for purposes of filing a petition for reconsideration of a Supreme Court decision; and (2) when must the motion for extension of time be filed to be timely.
I
On May 31, 1988, this Court entered its final decision in this case. The Supreme Court Clerk mailed by certified mail the decision to the attorneys of record on June 9, 1988. The docket sheet in the appellate record shows that certified copies of the decision were mailed to appellee's attorneys, Allen Sloan and Lawrence Ruzow, and appellant's attorney, Robert J. Wilson. The return receipt for the certified mail shows that Mr. Wilson's office received this Court's decision on June 27, 1988.
On July 8,1988, appellant, through new counsel, filed this motion requesting an extension of time to file a petition for reconsideration of this Court's May 31, 1988 decision. As grounds for the motion, appellant claimed that he attempted, unsuccessfully, to contact his attorney many times on his case over several *64months, and that his attorney had been charged with crimes in New Mexico. Appellant also claimed that his case file was in the custody of the McKinley County Attorney who would not release the file. Appellant stated that he cannot prepare the petition for reconsideration without his file, therefore an extension was necessary. Appellant further stated that he first obtained a copy of this Court's decision from the district court on June 21, 1988.
II
This Court can shorten or extend the time for filing papers with the Court using reasonable discretion, but the Court will not shorten or extend the time for filing a notice of appeal. NRCAP 5(b) (1987). A motion for extension of time must be filed before expiration of the time established in the Navajo Rules of Civil Appellate Procedure for filing the paper. If the motion is sent by mail, sufficient time for delivery must be allowed so that the motion will be in the custody of the clerk and filed before expiration of the time established. See In the Matter of Adoption of Baby Boy Doe, 5 Nav. R. 141 (1987).
A petition asking to reconsider a Supreme Court decision is permitted by our civil appellate rules. NRCAP 19 (1987). The petition seeking reconsideration must be filed “with the Clerk of the Supreme Court within twenty (20) days after the Clerk has notified the parties that a decision has been rendered by the Supreme Court.” NRCAP 19(a) (1987). Both parties argue this rule, but their interpretations of the rule differ.
The appellant's interpretation is that the time for filing a petition for reconsideration begins to run on the date the party receives a copy of the decision. Appellant's argument implies that “notified” means actual receipt. Appellant, thus, argues that the controlling date here is June 21, 1988; the date he obtained a copy of this Court's decision from the district court. Appellant further argues that NRCAP 19(a) required the Supreme Court Clerk to serve a copy of the decision on him.
In opposition, the appellee argues that the time for filing the petition for reconsideration begins to run on the date the Court enters its decision. According to the appellee, the controlling date here is May 31, 1988; therefore, either the motion for extension or the petition for reconsideration must have been filed by June 20,1988, to be timely. Appellee further argues that the appellant's problems with his attorney are not grounds for relief from this Court's May 31, 1988 decision.
Both parties, while apparently focusing on Rule 19(a), neglected to consider Rule 4(b) of the Navajo Rules of Civil Appellate Procedure. Rule 4(b) controls service by the Supreme Court Clerk of papers on parties to an appeal. The applicable part of the rule states that “[sjervice by mail is complete on mailing. Service of copies of notices and papers that the Clerk of the Supreme Court must serve on parties to the appeal shall also be made in accordance with the forego*65ing.” NRCAP 4(b) (1987). Parties to an appeal are, thus, notified of this Court's decision on the date that the decision is mailed to the attorneys of record as shown on the Supreme Court docket sheet. That date here is June 9, 1988. Allowing for seven (7) days mail service, NRCAP 5(c), appellant's motion for an extension of time must have been filed no later than July 6, 1988, to be timely. Appellant's motion for an extension of time to file a petition for reconsideration is untimely.
Appellant's argument that the Supreme Court Clerk must mail a copy of this Court's decision to him is not supported by either our rules or case law. Whenever a party is represented by counsel, then service upon that counsel is service upon the party. The established rule is that notice to the counsel of record serves as notice to the client. Chavez v. Tome, 5 Nav. R. 183, 189 (1987); Tracey v. Heredia, 4 Nav. R. 149, 153 (Window Rock Dist. Ct., 1983). Service by the Supreme Court Clerk of all papers shall be on the attorney of record until a substitution is made or until there is an appropriate withdrawal. See NRCAP 4(d) (1987). In this case, mailing of a copy of this Court's decision to appellant's counsel of record, as shown by the appellate record, is sufficient service upon the appellant. Appellant's problems with his attorney are insufficient grounds for an extension of time. Appellant has other relief available if he believes that his attorney has failed to adequately represent his interest.
The motion for extension of time is denied and dismissed. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502860/ | OPINION
Opinion delivered by
AUSTIN, Associate Justice.
This suit arose when John Abbott, a Utah official, intercepted the federal tax returns of Navajos living on the Navajo Reservation and whose children had received Aid to Families with Dependent Children (AFDC) benefits.1 The Navajo plaintiffs claim that their rights protected by federal laws were violated when Abbott caused the interceptions and when Abbott used Utah law to decide their child support obligations. A default judgment was entered against Abbott for his failure to comply with an order compelling discovery. On appeal from that judgment, Abbott raised these issues: (1) Whether the Navajo district court has subject matter jurisdiction in this case; (2) Whether the Navajo district court has personal jurisdiction over Abbott; (3) Whether the United States is an indispensable party to this case; (4) Whether this suit is properly maintained as a class action; (5) Whether the default judgment was properly entered; (6) Whether the default judgment amount is based upon reliable evidence; and (7) Whether plaintiff(s) is entitled to attorney's fees and costs.
I. Facts
Harold Billie, his ex-wife Patsy (not a party), and all class members, (plaintiffs), are enrolled Navajos living on the Utah side of the Navajo Reservation.2 Plaintiffs have had their federal income tax returns intercepted by Abbott as a means of repaying Utah for child support payments made to plaintiffs' children *67under the AFDC program.
Navajo code law and Navajo common law regulate the domestic relations (i.e., divorce and child support) of Navajos living in Navajo Indian Country. Using these laws, Billie and Patsy were divorced in Navajo court on April 11, 1983. The court gave Patsy custody of the children, and because Billie was unemployed, the court ordered Billie to “pay reasonable child support when he is employed and the monthly amount to be arranged by the parties.” Billie v. Billie, No. SR-CV-112-83 (Divorce Decree). Billie and Patsy never returned to court to set the amount of Billie's child support payments. Instead, Patsy, without Billie's knowledge, applied directly to Utah for AFDC benefits.
The AFDC program is a federal matching program designed to financially assist needy children; usually children who are not supported by their fathers. A state participant must submit a plan for approval by the federal government. Upon approval of its plan, a state can be reimbursed for any benefits it has paid to eligible applicants. Utah's plan was approved by the federal government.
Utah processed Patsy's application for AFDC benefits using its plan and laws established specifically for deciding the amount of support to be paid in the absence of a court order. Federal law allows a state to use its administrative procedures to set the amount of AFDC benefits to be paid to support a child where there is no court order. 42 U.S.C. § 656 (a)(2)(b). These federal laws governing AFDC benefits do not mention Indians or Indian reservations. There are no federal guidelines available that would guide the states in administering the AFDC program when Indians living on reservations apply for AFDC benefits. Patsy's application was approved and the Billie children received benefits.
Title 42 U.S.C. § 656 states that any money a state pays to support a child under the AFDC program shall constitute an obligation owed to that state by the individual responsible for providing such support. Section 656 also allows a state to collect “under all applicable State and local processes.” To collect the money Billie owed Utah, Abbott applied to the United States Secretary of the Treasury, using 42 U.S.C. § 664, to intercept Billie's federal income tax refunds. Section 664 directs the state to notify the Secretary if an individual owes the state past-due support. If there is money payable from the Treasury to that individual, the Secretary can withhold an amount equal to that past-due support and pay that amount to the state. The Secretary sent Utah the amounts Billie owed the state from Billie's 1984 and 1985 federal income tax refunds.
On April 28, 1987, Billie sued claiming that because Utah is barred from extending its laws into the Navajo Nation, Utah's use of its administrative procedures to determine plaintiffs' child support obligations was an invasion of rights secured to Navajo tribal members under the Navajo Treaty of 1868, 15 Stat. 667, and other federal laws. Billie alleged a cause of action under 42 U.S.C. § 1983 and a class suit under Rule 23(b) (2) of the Federal Rules of Civil Procedure. Billie wants to stop Utah's tax interceptions because he claims that Utah's administrative procedures cannot lawfully be applied to Navajos living on *68the reservation. Billie wants all intercepted federal tax refunds returned and his costs and attorney's fees paid by Utah.
On May 13, 1987, a request for production of documents necessary to determine the class was served on Abbott. Abbott then moved to dismiss the suit which was denied. After arguing the motion to dismiss, Abbott's counsel told the court that the discovery request would be answered. On August 21, 1987, the court granted Billie a preliminary injunction.
On September 8,1987, Billie moved to compel discovery because Abbott had not answered the request for production. On September 23, 1987, Abbott was ordered to answer discovery within 10 days or face a default judgment. Abbott received this order on October 1, 1987, but before receiving the order, Abbott appealed the orders granting the preliminary injunction and denying the motion to dismiss. The next day Abbott moved for protection from discovery until this Court had decided the appeals filed on October 1,1987. The district court did not act upon this motion. This Court dismissed the two appeals on October 28,1987.
On November 4, 1987, the court granted Billie a default judgment because of Abbott's noncompliance with the order compelling discovery. Billie was awarded $218,278.66 to cover intercepted federal tax refunds and $18,750.00 for attorney's fees. Abbott was permanently enjoined from intercepting the federal tax returns of class members.
II. Subject Matter Jurisdiction
A
Abbott concedes that the Navajo Nation has exclusive jurisdiction over the domestic relations of Navajos living on the reservation. Abbott, however, claims that if Navajos apply for AFDC benefits, then the AFDC legislation gives Utah pre-emptive and exclusive jurisdiction to decide their support obligations despite both parents and the children living on the reservation. Abbott's claim would divest the Navajo Nation of its exclusive jurisdiction over child support decisions involving Navajos living on the reservation when they apply for AFDC benefits. Abbott argues that, because the AFDC legislation has divested the Navajo Nation of jurisdiction, the Navajo district court does not have jurisdiction over claims against him.
The issue, in cases where Navajos apply for AFDC benefits, is whether the AFDC legislation has divested the Navajo Nation of its exclusive power to decide child support obligations of its members who live on the Navajo Reservation, and has that legislation vested exclusive jurisdiction in Utah to make those decisions. We find no such abrogation in the AFDC legislation; thus, we hold that the district court has jurisdiction over Billie's claims against Abbott under this issue.
Implicit in the Treaty of 1868 is the understanding that the internal affairs of the Navajo people are within the exclusive jurisdiction of the Navajo Nation govern*69ment. Williams v. Lee, 358 U.S. 217, 221-222 (1959). And, “since the signing of the Navajo treaty, Congress has consistently acted upon the assumption that the States lacked jurisdiction over Navajos living on the reservation.” McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 175 (1973). The sovereignty retained by an Indian tribe includes “the power of regulating [its] internal and social relations.” United States v. Kagama, 118 U.S. 375, 381-382 (1886). Because Navajo domestic relations is the core of the tribe’s “internal and social relations,” the Navajo Nation has exclusive power over domestic relations among Navajos living on the reservation. See, e.g., Fisher v. District Court, 424 U.S. 382 (1976).
Congress can impose through legislation certain limitations on Navajo sovereignty because Congress has special authority over Indian affairs. Johnson v. Navajo Nation, 5 Nav. R. 192, 198 (1987). If a federal statute is to limit Indian sovereignty or override Indian rights, Congress must clearly show its intent to do so before a court will allow such intrusion. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 (1978). Tribes and the federal government have a special relationship from which the states are excluded unless Congress clearly allows the states to treat Indians as a part of the general community. Bryan v. Itasca County, 426 U.S. 373 (1976). Such congressional intent must be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history. Id. at 393. The presumption is that a federal statute is not intended to make a radical change in Indian affairs, thus federal statutes should be construed in favor of retained tribal self-government. See Bryan, id.; Santa Clara Pueblo, id. The federal policy embodied in numerous federal statutes and federal court decisions is that the Indian tribes must exercise the full extent of their sovereignty. See Santa Clara Pueblo, id.
Congress has not clearly expressed its intent that 42 U.S.C. § 656 (determination of child support absent a court order), nor any section of the AFDC legislation, is meant to abrogate Indian tribal sovereignty. A congressional intent to allow states to decide the child support obligations of Indians living on a reservation is not clearly expressed on the face of the AFDC legislation. As a general statute, 42 U.S.C. §§ 601 et seq., cannot be read as expressly abrogating the exclusive powers of the Navajo Nation to decide its members' domestic relations; thus, the AFDC legislation does not expressly sanction Utah's interference in Navajo domestic relations. In fact, neither Indians nor Indian tribes are mentioned in the AFDC legislation.
Some general federal statutes which do not mention Indians or Indian tribes have been applied to Indian tribes. See, e.g., Colorado River Water Cons. Dist. v. United States, 424 U.S. 800 (1976). Even a statute of this nature, however, is required to show a congressional intent to intrude on Indian rights through its surrounding circumstances and legislative history. Colorado River, 424 U.S. at 811-813; Bryan, 426 U.S. at 393. Aside from the broad statement that “The AFDC legislation is a statute of general application and as such it was intended to apply to all residents of the United States, including Indian residents,” Abbott *70has not shown any legislative history nor any surrounding circumstances of the AFDC legislation which would clearly show that Congress intended to intrude on tribal domestic relations. Because the AFDC legislation does not show an intent to abrogate tribal sovereignty, either clearly on its face or through its surrounding circumstances and legislative history, the Navajo Nation has retained its exclusive jurisdiction over tribal members' child support obligations.
Cases may arise where tribal self-government may conflict with a federal law of general application. Even in these situations, “the Supreme Court has consistently recognized the unique status of tribes, Indians, and their lands, and has required that the congressional purpose of a conflicting law clearly require that it apply to Indians before Indian rights are held implicitly infringed.” F. Cohen, Handbook of Federal Indian Law, 286 (1982 ed.). The AFDC legislation clearly does not intend a state to be the only sovereign to decide the child support obligations of Indians living on a reservation. Abbott’s reliance on Colorado River to advance this argument is unpersuasive.
In Colorado River, the Court held that states have jurisdiction over Indian water rights' issues under the McCarran Amendment, 43 U.S.C. § 666. Like the AFDC legislation, the McCarran Amendment did not mention Indians, yet, unlike the AFDC legislation, the legislative history of the McCarran Amendment was replete with references to its effect on Indians. Regardless of this difference Colorado River is best confined to the uniqueness of water adjudication, see Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983), rather than being applied to a question of a state's attempt to assert jurisdiction over an Indian tribe's internal affairs.
The Navajo Nation's exclusive power to regulate domestic relations among Navajos living within its borders is beyond doubt. The Navajo Nation has codified law and case law regulating Navajo domestic relations. And the Navajo Nation's right to make its own laws and be ruled by them is an established principle in Indian law. Williams v. Lee, 358 U.S. 217 (1959); United States v. Wheeler, 435 U.S. 313 (1978). Accordingly, absent explicit congressional authorization, if a state infringes on the right of reservation Indians to make their own laws and be governed by them, that state has acted outside its authority. See Williams v. Lee, 358 U.S. at 220-223; McClanahan v. Arizona State Tax Comm'n, 411 U.S. at 173. The AFDC legislation does not explicitly authorize Utah to decide tribal domestic relations, thus, Utah's determination of Billie's support obligation is an unlawful interference with Billie's right to be regulated by Navajo law. Billie can seek the protection of Navajo law to preserve his right to have his support obligation decided by Navajo law.
B
Abbott argues that Utah's implementation of the AFDC legislation would be frustrated if he cannot use Utah law to decide the amount of child support obligations of Navajos, especially if there is no Navajo court order. Abbott predicts *71more obstacles if he is required to pursue collection through the Navajo courts. In narrow cases, a state may extend its laws onto a reservation to protect its legitimate interest. McClanahan v. Arizona State Tax Comm'n, 411 U.S. at 179. But even there the state must show that essential tribal relations are not involved and that rights of tribal members will not be jeopardized. Williams v. Lee, 358 U.S. at 219. Although Utah has an interest in serving eligible Navajo children, the manner in which it determines eligibility (use of non-Navajo law) implicates essential Navajo tribal relations, and in the end Utah jeopardizes the rights of Navajos to have their support decided by Navajo courts.
Only Navajo courts using Navajo law can decide Billie's child support obligation. Only Navajo courts can be used to collect past-due support owed by Navajos living on the Navajo Reservation. Navajo self-government mandates it. If Utah laws are used to decide the child support obligations of Navajos, then, Utah laws would supplant Navajo laws and firmly established Navajo cultural practices on domestic relations.
Navajo statutes and case law reflect Navajo culture and the unique circumstances and needs of the Navajo people living on the reservation. State determinations of tribal domestic relations, no matter how narrow the intrusion, are always hostile to and in conflict with the needs of the Indian people. For this very reason we disagree with the decision in New Mexico v. Jojola, 99 N.M. 500, 660 P.2d 590 (1983), cert. denied, 464 U.S. 803 (1983); a case cited by Abbott. There the Court clearly ignored an Indian tribe's right to regulate its internal relations.
A further danger is that state decisions on Navajo domestic relations may cause a decline in Navajo court authority over Navajos and over Navajo domestic relations. Williams v. Lee, 358 U.S. at 223; Fisher v. District Court, 424 U.S. at 388. Utah's decision on Billie's support obligation would not only adversely affect Navajo authority over internal tribal matters, but it may encourage Navajos to go directly to Utah in hopes of receiving a larger award. State interference would indeed hinder the development of Navajo domestic relations law. There is clearly infringement upon Navajo self-government when a state official decides the child support payments of Navajos living on the reservation.
Federal statutes passed to benefit Indians are construed to favor the Indians. Alaska Pacific Fisheries v. United States, 248 U.S. 78 (1918). The policy for this construction is “rooted in the special trust relationship between the United States and Indian tribes.” F. Cohen, Handbook of Federal Indian Law, 224 (1982 ed.). See also Tulee v. Washington, 315 U.S. 681 (1942); Carpenter v. Shaw, 280 U.S. 363 (1930). There is no reason why this same policy should not support construing a general federal statute consistent with Congress' goal of tribal self-government. Utah and the Navajo Nation, no doubt, can cooperate so that the AFDC legislation is implemented in a way that benefits Navajos living on the reservation without violating the federal purpose. The AFDC legislation is flexible enough so that Abbott can come to Navajo courts to adjudicate the support amount, or Utah can require Navajo applicants to go first to Navajo courts for *72support decisions. In this case the Navajo court had continuing jurisdiction over Billie's support obligation, and Utah, which had no jurisdiction, should have required Patsy to return to the Navajo court.
Once a Navajo court has decided the amount of child support that should be paid, and after AFDC benefits are paid, Utah again must pursue its arrearage collection through the Navajo courts. This again is not contrary to the AFDC legislation which authorizes a state to use courts for collection. See 42 U.S.C. § 656 (a)(1). Certainly, cooperation between the Navajo Nation and Utah would have far better results than costly litigation.
C
Abbott also claims that under Utah's sovereign immunity statute, UTAH CODE ANN. § 63-30-3 (Supp. 1979), Billie is barred from suing a Utah official in Navajo court. This would be true if Billie is strictly a resident of Utah suing in Utah state court and not a resident of the Navajo Reservation. A suit against a state in its own court is governed by the state's own laws. The question remains whether the Navajo court should recognize Utah's defense of sovereign immunity.
Although Abbott has not argued that any federal law may have limited the power of the Navajo Nation over a state official, we feel obligated to make that inquiry. Our review of the Treaty of 1868 has not disclosed any such limitation on Navajo sovereignty. And we have not found any federal statute with such limitation. The fact is suits against state political sub-divisions in tribal courts are not unknown. See, e.q., National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985) (question of whether tribal court has jurisdiction over state school); Hubbard v. Chinle School Dist. Nos. 24/25, 3 Nav. R. 167 (1982).
The issue concerning a suit against a state in another state's court was decided in Nevada v. Hall, 440 U.S. 410 (1979). In Hall the Court found that when a state is sued in another sovereign's court, the rule governing state suability in its own court is not controlling because “[sjuch a claim necessarily implicates the power and authority of a second sovereign.” Id. at 416. The Court said that if a state's sovereign immunity is to be recognized by the second sovereign, then “its source must be found in an agreement, express or implied, between the two sovereigns, or in the voluntary decision of the second to respect the dignity of the first as a matter of comity.” Id. at 416
The Navajo Nation does not grant immunity from suit to any state as a matter of comity. We have also not found any agreement, express or implied, between the Navajo Nation and Utah which would require this Court to recognize Utah's defense of sovereign immunity. We have previously said that the states of the Union are foreign governments in relation to the Navajo Nation. Hubbard, 3 Nav. R. at 169. In Hubbard we further ruled that the Navajo Nation courts have jurisdiction over suits against a state. Id. at 170. The reverse, however, a suit against the Navajo Nation in Utah court, would be barred by tribal immunity from suit, *73not as a matter of comity, but based upon federal pre-emption.
III. Personal Jurisdiction
A
The question here is whether Abbott has caused an action to occur within the territorial jurisdiction of the Navajo Nation so that he is subject to Navajo court jurisdiction. We hold that he has.
At the outset we establish that a defendant may cause personal injury actionable in Navajo court without ever having set foot on Navajo soil. In a prior decision this Court said that the Navajo courts have jurisdiction “over any person doing injury within the Navajo Nation....” Deal v. Blatchford, 3 Nav. R. 159, 160 (1982); Accord, Keith v. Allred, 3 Nav. R. 191 (Chinle Dist. Ct. 1981). We further find that claims brought under 42 U.S.C. § 1983 are best characterized as personal injury actions. Wilson v. Garcia, 471 U.S. 261 (1985).
Tribal members residing on a reservation have certain rights protected by federal law while they exercise those rights within the boundaries of the reservation. For example, a state may not tax a Navajo's income derived from Navajo Reservation sources, McClanahan v. Arizona State Tax Comm' n, 411 U.S. 164; a civil suit against a Navajo residing on the Navajo Reservation must be brought in Navajo court, Williams v. Lee, 358 U.S. 217; and Navajos residing on the reservation have the right to have a Navajo court decide their domestic relations, Fisher v. District Court, 424 U.S. 382. These rights guaranteed to tribal members have no effect off the reservation, because “[ajbsent express federal law to the contrary, Indians going beyond reservation boundaries have generally been subject to nondiscriminatory state law otherwise applicable to all citizens of the state.” Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-149 (1973).
Whenever any right that an enrolled Navajo has while residing on the Navajo Reservation is abrogated by a state official, that Navajo has suffered a personal injury. See Wilson v. Garcia, 471 U.S. 261 (1985). When those rights that exist only within the boundaries of the reservation are violated, the injury occurs on the reservation, because those rights generally are not effective off the reservation. Mescalero Apache Tribe, 411 U.S. at 148-149.
Domestic disputes arising among Navajos residing on the reservation are within the exclusive jurisdiction of the Navajo courts. Fisher v. District Court, 424 U.S. 382; Arviso v. Dahozy, 3 Nav. R. 84 (1982). If a state official interferes in the domestic disputes of Navajos living on the reservation then the official has caused an action to occur within the Navajo Nation. This is true although the state official may not have entered the reservation. A Navajo's right to have his domestic dispute heard by a Navajo court is effective while he resides on the reservation. Because of the Navajo Nation's exclusive jurisdiction over Navajo domestic relations, Billie has a right to have his child support decided only by a Navajo court. When Abbott used Utah administrative procedures to decide *74Billie's support obligation, he denied Billie a right to present evidence on culture and traditions, and other factors unique to Navajo people. This denial has caused Billie a personal injury actionable in a Navajo court and that injury took place on the reservation.
We next consider Abbott's argument that unless he has minimum contacts with the Navajo Nation, due process dictates that the Navajo Nation has no personal jurisdiction over him. The United States Supreme Court cases stating that a defendant must have minimum contacts with the forum state to be brought into the state’s court are based on the fourteenth amendment due process clause of the United States Constitution. World-Wide Volkswagen v. Woodson, 444 U.S. 286, 291 (1980). Because the United States Supreme Court has held that the Indian tribes are not constrained by the Bill of Rights in the United States Constitution, Santa Clara Pueblo, 436 U.S. at 56; Talton v. Mayes, 163 U.S. 376 (1895), we are not bound by the rationale nor the holding of any case construing those amendments.
Despite the inapplicability of the United States Constitution, the Indian Civil Rights Act (ICRA), 25 U.S.C. § 1302(8), and the Navajo Bill of Rights (NBR), 1 N.T.C. § 3, both require that Abbott must be given due process. Furthermore, in at least one case a Navajo court mentioned minimum contacts. See Peterson v. Ford Motor Credit Co., 2 Nav. R. 36 (Crownpoint Dist. Ct. 1979). Due process under the ICRA and the NBR must be interpreted in a way that will enhance Navajo culture and tradition. Navajo domestic relations, such as divorce or child support, is an area where Navajo traditions are the strongest. To enhance the Navajo culture, the Navajo courts must synthesize the principles of Navajo government and custom law. From this synthesis Navajo due process is formed.
When Navajo sovereignty and cultural autonomy are at stake, the Navajo courts must have broad-based discretion in interpreting the due process clauses of the ICRA and NBR, and the courts may apply Navajo due process in a way that protects civil liberties while preserving Navajo culture and self-government. Abbott has interfered with the domestic relations of Navajos, a subject with strong cultural ties. This has caused personal injury unique to Navajos residing on the reservation. We have just held that this personal injury occurred on the Navajo Reservation, thus, Abbott has made “minimum contact” with the Navajo Nation to satisfy the requirement of Navajo due process under the ICRA and under the NBR.
B
Abbott also asserts that service of process on him outside the reservation was insufficient because he did not engage in activities on the Navajo Reservation which would subject him to personal jurisdiction in Navajo court.
Service was made on Abbott by certified mail. Such service was proper. Rule 3, NRCP (1978 ed.); Peterson v. Ford Motor Credit Co., 2 Nav. R. at 41. A state official is amenable to the service of process of the Navajo courts if that official *75has caused an action to occur within the territorial jurisdiction of the Navajo Nation. Abbott has caused Billie an injury on the Navajo Reservation. The service notified Abbott of the suit against him, so it complied with all due process requirements.
IV. The United States as an Indispensable Party
Abbott argues that the United States is an indispensable party to this action because federal legislation is at issue, and if the Navajo court rules for Billie, the rights of the United States will be impaired. Simply because federal legislation is at issue does not make the United States an indispensable party. “[Ijmportant questions about legislation are [often] presented to courts without the sovereign being joined as an indispensable party.” Halona v. MacDonald, 1 Nav. R. 189, 203 (1978).
A party is indispensable to a lawsuit if that party has an interest in the action, and the disposition of the action in his absence may impair his ability to protect that interest. Fed. R. Civ. R 19(a). An indispensable party is one whose relationship to the controversy is such that any decree entered would affect that party's rights. Pulitzer-Polster v. Pulitzer, 784 F.2d 1305 (5th Cir. 1986).
We hold that the United States is not an indispensable party to this lawsuit. No interest of the United States is impaired or affected by requiring Abbott to litigate Navajo child support obligations in Navajo court. Neither does such a requirement burden Utah, making implementation of the AFDC legislation more difficult. The AFDC legislation is not being undermined. Instead, the AFDC legislation is being clarified as it is applied to tribal residents of a reservation.
V. The Propriety of this Suit as a Class Action
Abbott claims that because the Navajo Tribal Code and the Navajo Court Rules say nothing about class actions, such an action cannot be brought in a Navajo court. In the alternative, Abbott argues that even if Rule 23 of the Federal Rules of Civil Procedure is applicable in Navajo court, Billie's complaint failed to meet the requirements of a class action.
Billie argues that 7 N.T.C. § 204 allows the Navajo courts to use the Federal Rules of Civil Procedure. Billie also asserts that when the district court entered the default judgment, the effect was the same as if Abbott had admitted all the allegations in the complaint. Therefore, unless the district court abused its discretion in entering the default judgment, the certification of the class must remain undisturbed.
Section 204 does authorize the Navajo courts to use any applicable law of the United States in any controversy, so the district court's use of Rule 23 of the Federal Rules of Civil Procedure was proper. Class actions are often a desirable method of dispute resolution, because they eliminate separate suits thereby providing for judicial efficiency.
*76To maintain a class action under Rule 23 of the Federal Rules of Civil Procedure, four criteria must be met: the class must be so numerous that joinder is impracticable; there must be questions of law or fact common to the class; the claims or defenses of the representative party must be typical of the claims or defenses of the class; and the representative party must fairly and adequately protect the interests of the class. Billie failed to malee a positive showing that his lawsuit met the criteria for class action suits. This failure may have been partly a result of Abbott's failure to provide the necessary documents to Billie for assessment of the class. Therefore, the district court's decree that the action was properly maintained as a class action is erroneous.
Even though all allegations in a complaint are generally taken as true in a default judgment, Postal Ben. Ins. Co. v. Johnson, 165 P.2d 173, 178 (Ariz. 1946), Billie's bald assertions regarding the class are not enough. Even in a default judgment the plaintiff needs facts to prove that his suit qualifies as a class action. We reverse the district court's ruling on the class action and we remand so that Billie may properly qualify his suit as a class action.
VI. The Propriety of the Default Judgment Entry
The district court determines primarily whether a party's failure to comply with a court's order was willful, and whether the circumstances were so aggravated as to justify a default judgment. See Chavez v. Tome, 5 Nav. R. 183 (1987); Four Corners Auto Sales v. Begay, 4 Nav. R. 100, 103 (1983). The choice of the appropriate discretionary sanction for ignoring a court order compelling discovery is primarily the responsibility of the trial judge, and the judge's decision cannot be reversed absent an abuse of discretion. Chavez, 5 Nav. R. at 186. The district court stated in its conclusions of law that Abbott's disobedience to the discovery order was willful, in bad faith, and represented contempt of court. In evaluating the district court finding, the question is not whether this Court would have entered a default judgment, but whether the district court abused its discretion in doing so. However, where a judgment involves a default, our review should be particularly scrupulous lest the district court resort too quickly to this extreme sanction which amounts to a judgment against the defendant without an opportunity to be heard on the merits.
A trial on the merits is strongly favored over a default judgment, see, e.g., Wilson v. Wilson, 3 Nav. R. 145, 147 (1982). However, a default judgment protects a diligent party from continual delay and uncertainty as to his rights. Therefore, in deciding whether to grant a default judgment or not, a court must strike a balance between the need to prevent delay and the sound public policy of adjudicating cases on the merits. Chavez, 5 Nav. R. at 188.
The most severe sanction for a failure to obey a court order is a default judgment, and a court should impose such a sanction only in the most extreme circumstances. The evidence does not support the harsh sanction of a default judg*77ment here. Abbott's conduct was not egregious enough to warrant a default judgment against him; he did not flatly refuse to comply, or constantly fail to meet deadlines or obey orders. The facts show that Abbott had filed two appeals prior to receiving the order compelling discovery. Immediately after receiving the order, Abbott moved for an order seeking protection from discovery pending this Court's decision on the two appeals. The district court did not act on Abbott's motion. Although the appeals were dismissed by this Court, Abbott's actions were done in good faith. We reverse the judgment of default entered by the district court.
VII. The Amount of the Default Award
Because we reverse the default judgment, the default award amount is also reversed, and we need not reach the issue of whether the amount was based upon reliable evidence. We also reverse and vacate the award of attorney's fees for the same reason.
The Window Rock District Court is affirmed in part; reversed in part; and the case is remanded to that court.
. Pub.L. No. 271, §§ 401 etseq., 49 Stat. 627 etseq., Codified as Title IV-A of the Social Security Act; 42 U.S.C. §§ 601 et seq.
. The Navajo Indian Reservation is located within the States of Arizona, Utah and New Mexico. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502861/ | OPINION
Opinion delivered by
TSO, Chief Justice.
I
This is an election case in which the Appellant, Karl Katenay, appealed the November 30, 1988 decision of the Navajo Board of Election Supervisors denying him the right to appeal a disputed chapter recall election.
On October 17, 1988, the Navajo Board of Election Supervisors ("Board") received a Statement of Grievance and Petition requesting the removal of Karl Katenay as Iyanbito Chapter President. On October 21, 1988, the Board verified the signatures on the petition and, after finding sufficient valid signatures of persons registered to vote in Iyanbito Chapter on the petition, it set a chapter hearing on the matter for October 31, 1988.
The Board notified those petitioning for removal of Katenay of the chapter hearing on October 26, 1988, and gave Katenay formal notice in a letter delivered to him at approximately 10:00 a.m., on October 27, 1988. Katenay was not invited to attend the verification process, and has since been denied any opportunity to independently verify the authenticity and sufficiency of the signatures on the petition.
Immediately preceding the October 31, 1988 chapter hearing, Katenay requested a continuance, stating that he had not been given adequate time to prepare his case. The Board denied the request and proceeded with the hearing over Katenay's objection.
The chapter hearing took place at Iyanbito Chapter. At the conclusion of the hearing, the Board announced that a special recall election would take place on November 10, 1988. The recall election resulted in 122 votes cast in favor of *82retaining Katenay as Chapter President, 154 votes cast against retaining Katenay, and 2 challenge votes cast, which were thrown out.
On November 21,1988, Katenay filed a Statement of Grievance appealing the special recall election. The Board rejected this appeal as not timely filed and, finding that no appeal had been filed within ten calendar days of the election, or November 20,1988, as required by 11 N.T.C. § 407, certified the election results. A formal Board decision rejecting Katenay's November 21, 1988 appeal was issued on November 30, 1988.
An appeal of the Board's decision was filed in this Court on December 9,1988. This appeal raised three issues: (1) Whether Katenay's appeal of the special recall election was barred by 11 N.T.C. § 407, because the appeal was filed on the first working-day after the ten calendar days period had expired; (2) Whether the Board denied Katenay adequate time to prepare his case for the chapter hearing held on October 31,1988; and (3) Whether the Board, in holding the election ten days after the hearing, failed to conduct the special recall election in accordance with 2 N.T.C. § 4005 (c)(3-4).
II
Timeliness of Katenay’s Statement of Grievance
The procedures for appeal of a disputed chapter election are set forth at 11 N.T.C. § 407(a), which states:
A disputed chapter election for any office in a chapter shall be appealed in writing within 10 calendar days following the election to the Board of Election Supervisors by the aggrieved candidates.
Katenay filed an appeal of the November 10, 1988 special election to recall him as president of Iyanbito Chapter on November 21,1988. The ninth and tenth calendar days after the recall election fell on a Saturday and a Sunday. Katenay was unable to file an appeal on either of those days because the Board offices were closed over the weekend. Katenay filed his appeal on Monday, the next working day. The Board denied Katenay’s appeal without a hearing for failure to timely file his appeal.
Many states have statutes providing specifically, or in effect, that if the last day on which an act is to be done falls on a Saturday, Sunday or holiday, that day is to be excluded from the computation of time. 74 Am. Jur. 2d Time § 19 (1974). In other states, the rule has obtained as a matter of practice. Id. The time allowed for an appeal is usually prescribed by statute or rule of court. 4 Am. Jur. 2d Appeal and Error § 310 (1964). Although no Navajo Tribal Code provision has been enacted specifically for this purpose, the same rule has been adopted by our courts. Rule 30 of the 1978 Navajo Rules of Civil Procedure provides that:
In computing any period of time allowed by these rules, by order of the court, or by any applicable law ... [t]he last day of the period so computed is to be *83included, unless it is a Saturday or Sunday or court holiday, in which event the period runs until the end of the next day which is neither a Saturday or Sunday nor a holiday.
Rule 5(a) of the Navajo Rules of Civil Appellate Procedure adopts the same rule, with only immaterial changes in wording. Rule 5(a) states:
In computing any time limits required by these rules, or by order of the Supreme Court, or by any applicable law, the day of the act, event, or judgment shall not be included. The 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.
The Board assumes quasi-judicial status when it reviews an appeal of a disputed chapter election. This is a solemn task, with serious consequences for the affected official, including ineligibility to run for chapter office again for at least five years from the date of removal. 2 N.T.C. § 4005(d). Because of this, the Navajo Tribal Council has authorized appeal of the Board's decision to this Court. 11 N.T.C. § 407(c) states:
A decision of the Board of Election Supervisors upholding or vacating a disputed chapter election may be appealed within 10 calendar days to the Court of Appeals [Supreme Court] of the Navajo Nation.
Time computation for appeal to this Court is governed by Rule 5(a) of the Navajo Rules of Civil Appellate Procedure. Had the final day for Katenay to appeal to this Court fallen on a Sunday, it would have been excluded from the computation of time, giving Katenay until the end of the next working day.
The reason for excluding Saturdays, Sundays and holidays from computation of appeal time is so that the appellant can have use of all days he is entitled to. The Navajo Tribal offices and the courts are closed on Saturdays, Sundays and holidays so it is impossible to file an appeal on those days.
Katenay had ten days to file an appeal, but two of those days fell on a weekend, leaving Katenay with only eight days to file. Katenay is entitled to all ten days. We therefore hold that under 11 N.T.C. § 407, if the tenth calendar day falls on a weekend or a holiday, then the appeal can be filed on the next working day which is not a weekend or holiday.
Ill
Adequacy of the opportunity given Katenay to prepare this case
Katenay was given notice on Thursday, October 27, 1988, that the Board had received a recall petition on October 17, 1988. After verifying the signatures on the petition, the Board set a chapter hearing on the matter for Monday, October 31, 1988. By his own calculation, this left Katenay with only fourteen hours to *84obtain the assistance of counsel and secure three witnesses to testify on his behalf at the hearing.
Under 2 N.T.C. § 4005(c) (1-2), once the Board has verified a removal petition, it must notify the affected chapter officials and “schedule a hearing at the affected chapter, at which both the affected official and the signers of the petition shall have the opportunity to present their case.” By our calculation, Katenay had four days to prepare his case. Two of the four days were a weekend. We hold that four days in this case were not sufficient time to prepare for the chapter hearing. Katenay had to travel long distances to obtain counsel and secure witnesses. He faced problems with locating people on the weekend, along with the general obstacles associated with life in rural areas.
Katenay also did not have an adequate opportunity to prepare his case in another respect. He was not allowed to view the recall petition or attend the verification process. Although 2 N.T.C. § 4005(c) is silent on this matter, fairness and due process are best served by requiring that the Board give an affected official or his authorized representative adequate notice and an opportunity to attend the verification process.
IV
The Board's non-compliance with recall election Procedures
The Board concluded a chapter hearing on the petition at Iyanbito Chapter on October 31, 1988. At the conclusion of the hearing, the Board set November 10, 1988, as the date for a special election to recall Katenay. When reviewing actions taken by the Board, this Court will determine whether the Board abused its discretion, violated the rights of contestants, or failed to follow its own procedures or those mandated by the Navajo Tribal Council. Mustach v. Navajo Board of Election Supervisors, 5 Nav. R. 115, 118-19 (1987).
2 N.T.C. § 4005(c) provides:
(3) At the conclusion of the hearing, a secret ballot shall be taken to determine whether or not the official shall be removed, (emphasis added).
(4) A majority vote of those present and voting shall be required for removal, (emphasis added).
By scheduling the recall election ten days after the hearing, instead of conducting a secret ballot of those present immediately after the hearing, the Board failed to follow Navajo law on removal of chapter officials. As a result, instead of confining the ballot to the fifty or so persons who attended the hearing and heard the witnesses who spoke in Katenay's defense, some 278 persons were allowed to vote in the recall election.
The procedures established in 2 N.T.C. § 4005 for removal of chapter officials were not intended to be followed at the Board's discretion. Mustach, 5 Nav. R. at *85118. They function to protect the due process rights of signatories of a removal petition and affected chapter officials.
An elected official does not have a property right in public office. The office belongs to the voting public. Katenay's due process rights do not stem from his position as a holder of elected office. His due process rights are derived from 2 N.T.C. § 4005, which gives him the right to explain to his constituents the grievances against him and to be voted out of office, or retained, by persons who were present during his explanation.
The Board's failure to follow 2 N.T.C. § 4005, as it relates to the special election to recall Katenay, denied him due process. Section 4005 requires a vote by secret ballot at the conclusion of the hearing to determine whether Katenay should be removed. The law does not allow a vote to be taken ten days after the chapter hearing.
The Board argues that the special recall election was held ten days after the October 31, 1988 hearing, because the electronic voting machines use specially printed ballots which require a minimum of ten days to print. This argument is not persuasive considering that the Board was put on notice on October 17,1988, of the inevitability of a recall election following the signature verification. 2 N.T.C. § 4005(c) (3). Thus, the Board should have immediately ordered the ballots and scheduled the chapter hearing to coincide with the date the ballots would be ready.
For these reasons, we must overturn the results of the special election held on November 10, 1988 to recall Katenay, and remand the matter to the Board to begin from the stage where the Statement of Grievance and Petition against him were received. The Board must afford Katenay or his authorized representative the opportunity to be present during the verification process. If the Board again finds sufficient valid signatures on the petition, it shall proceed as mandated in 2 N.T.C. § 4005. Meanwhile, Katenay is restored as Iyanbito Chapter President.
Reversed and Remanded. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502862/ | OPINION
Per curiam.
I
A motion has been filed with this Court to disqualify the Honorable Tom Tso, Chief Justice of the Supreme Court, from participating in any proceeding before this Court involving Chairman Peter MacDonald Sr. and the parties to the above entitled action.
The motion alleges that the Chief Justice, by administering the oath to Leonard Haskie, interim chairman, and Irving Billy, interim vice chairman, has taken sides in the current dispute between members of the Navajo Tribal Council and Chairman Peter MacDonald Sr.
II
Parties to a case have a basic right to a fair and impartial judge. McCabe v. Walters, 5 Nav. R. 43, 50 (1985). A judge should be disqualified if he has an interest in the case, is biased or prejudiced, or has some relationship to a party in the case. In re: Estate of Peshlakai, 3 Nav. R. 180 (Shiprock Dist. Ct. 1981). Rule 16, Navajo Rules of Civil Appellate Procedure, provides that:
Any Justice may be disqualified on motion of one of the parties or his own motion.... The motion shall state specifically the grounds on which it is based and it shall be supported by affidavit or other satisfactory evidence.
*87One ground for the motion is that the Chief Justice must be disqualified from this case and other future related cases, because the Chief Justice administered the oath to two members of the Navajo Tribal Council who were appointed as interim officials by their peers. The issue is whether, by administering the oath, the Chief Justice has shown that he is biased or prejudiced against either side in the current dispute between the Chairman and certain members of the Navajo Tribal Council.
The administration of an oath is nothing more than a ministerial act. 58 Am. Jur. 2d Oath And Affirmation § 6 (1971). A ministerial act is,
One which a person or board performs in a given state of facts in a prescribed manner in obedience to the mandate of legal authority without regard to or the exercise of his or their own judgment upon the propriety of the act being done, (citations omitted) (emphasis added).
Black's Law Dictionary 899 (5th ed. 1979).
Navajo judges and justices routinely administer oaths to chapter officials, tribal council delegates, the chairman, vice chairman, members of boards and commissions, and admittees to the Navajo Nation Bar Association (NNBA). To do what one routinely does is not a decision. By simply administering an oath, a judge does not pass judgment on the legality of the underlying circumstances that brought the individual to the judge for an oath. For example, when an oath is administered to admittees to the NNBA, this Court is not passing judgment on the fitness of any of those persons to practice law.
In administering the oath, the Chief Justice was merely performing a ministerial act. The Chief Justice did not exercise any judgment as to whether the action of the majority of the council delegates to appoint interim officials was proper or not. Neither did the Chief Justice, by giving an oath, pass judgment on the legality of the March 10,1989 Council session. This is further supported by the Chief Justice's statement, prior to administering the oath, that he was performing a ministerial act which should not be construed as support of either faction or “as a judicial decision on the propriety of any actions taken by the Navajo Tribal Council.” We cannot detect any bias or prejudice on the part of the Chief Justice simply from his administration of an oath.
Another ground for the disqualification of the Chief Justice is that the above entitled case is still pending before this Court. We disagree. This Court issued its final decision on the Petition for a Writ of Prohibition on March 2, 1989. In that order we stated that “an Opinion will be filed at a later date explaining the Court's decision."
By leaving room for an opinion, we did not indicate that the March 2, 1989 order will be modified by the opinion. The issues brought before the Court have been argued, considered and disposed of; therefore, there are no issues still pending in this Court in the above entitled case.
For these reasons the motion to disqualify the Chief Justice is denied and dismissed. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502863/ | OPINION
Opinion delivered by
Austin, Associate Justice.
A petition for a writ of prohibition was filed in this Court seeking to prohibit the Honorable Judge Harry Brown, Judge of the Kayenta District Court, from exercising jurisdiction in the action titled Peter MacDonald Sr., Chairman of the Navajo Tribal Council, Chief Executive Officer of the Navajo Nation and as an Individual v. Marshall Plummer, et al, No. KY-CV-019-89 (MacDonald suit). On March 2, 1989, we issued a permanent writ of prohibition.
I
On February 21, 1989, Chairman Peter MacDonald Sr. filed the MacDonald suit against the Navajo Tribal Council and certain named delegates to the Navajo Tribal Council. The MacDonald suit sought declaratory and injunctive relief. The suit was filed in the Kayenta District Court, where the Honorable Judge Harry Brown is the presiding judge.
On the same date, February 21, 1989, Judge Brown issued a temporary restraining order enjoining the defendants from enforcing a Tribal Council resolution (CF-4-89) placing Chairman MacDonald on administrative leave with pay and removing all legislative and executive authority from the Chairman. In addition, Judge Brown issued an order setting a hearing on the temporary restraining order for February 24, 1989.
A petition for a writ of prohibition to stop Judge Brown from conducting the *89hearing set for February 24, 1989, was filed on February 23, 1989. On February 24, 1989, we issued an alternative writ of prohibition directing Judge Brown not to proceed with the hearing. We also ordered Judge Brown to show cause on February 28, 1989, why the alternative writ should not be made permanent.
We heard arguments on February 28, 1989. On March 2,1989, we ordered the following: (1) the writ of prohibition is made permanent; (2) the temporary restraining order is vacated; (3) the MacDonald suit is dismissed; (4) Judge Brown is permanently prohibited from presiding over any proceeding, whether for injunctive relief, declaratory relief or otherwise, involving any suit where Peter MacDonald Sr. has an interest; and (5) an opinion is to be filed explaining the Court's decision.
II
The issues presented to this court are the following: (1) Whether the Kayenta District Court has jurisdiction to decide the MacDonald suit; (2) Whether the Honorable Judge Harry Brown has a duty to disqualify himself from the MacDonald suit because of his familial relationship to Chairman MacDonald; (3) Whether the Navajo Tribal Council has the authority to place Chairman MacDonald on administrative leave; (4) Whether the resolution placing Chairman MacDonald on administrative leave is in effect a bill of attainder; and (5) Whether Chairman MacDonald's civil rights were violated by the Navajo Tribal Council.
Prior to our decision on the merits we will quote a source from “Respondent's (Chairman MacDonald's) Supplemental Brief to Writ of Prohibition": “There are laws and procedures but these are only technical in nature. In order for the laws to work, we, the people must make it work.” Statement of Daniel Peaches, March 1, 1989. This Court will decide the case based upon the law.
III
A
A proceeding for a writ of prohibition is used essentially to test the jurisdiction of a court. Yellowhorse v. Window Rock Dist. Ct., 5 Nav. R. 85 (1986); McCabe v. Walters, 5 Nav. R. 43 (1985). A writ of prohibition will be issued as a matter of right if it is clear the district court is without jurisdiction and the petitioner has no other remedy available. Yellowhorse, 5 Nav. R. at 87. It is important to examine the history of the Navajo courts to find the source of Navajo court jurisdiction.
The courts of the Navajo Nation were created by the Navajo Tribal Council. Johnson v. Navajo Nation, 5 Nav. R. 192, 195 (1987). The whereas clauses in a 1958 resolution state the following:
*901. The Navajo Tribal Council has heretofore attempted to provide for the appointment of a Chief Judge of the Tribal Courts, with responsibility for organizing the work of the Navajo Tribal Courts, and for the establishing of an appellate court of three judges to consist of the Area Director, the Area Counsel, and one of the Tribal attorneys (Resolutions Nos. CJ-4-53 and CJ-5-53, January 8, 1953); but these resolutions were disapproved by a former Commissioner of Indian Affairs, Dillon S. Myer, in a letter of March 3,1953 (Law and Order 879-53, 880-53), holding that judges on the Navajo Reservation are not Tribal judges, but are judges of courts established by the Department of the Interior, and that their authority to act is derived from the regulations of the Department of the Interior, without objection, however, if the Tribal Council wished to undertake a complete revision of the law enforcement activity on the reservation by enacting ordinances which would establish Tribal courts in lieu of the Courts of Tribal Offenses theretofore established, (emphasis added).
3. With the assumption of complete responsibility for enforcement of law and order on the Navajo Indian Reservation (Resolution No. CJ-45-58), it is appropriate at this time that the Council declare and seek the concurrence of the Commissioner of Indian Affairs that the courts of justice existing on the Navajo Indian Reservation are courts of the Navajo Tribe and not of the Department of the Interior, and that these courts be made effective and respected instruments of Justice.
Navajo Tribal Council Resolution CO-69-58 (October 16, 1958) (emphasis added). In this same resolution the Navajo Tribal Council gave the district courts original jurisdiction over certain actions, Id. at § 4, and gave the appellate court appellate jurisdiction, Id. at § 6.
History shows that the Navajo Tribal Council gave the Navajo courts their jurisdiction. Consequently, the Navajo courts can exercise only that jurisdiction granted by the Navajo Tribal Council. Nez v. Barney, 3 Nav. R. 126, 129 (1982). In recent amendments to the Navajo Sovereign Immunity Act, 1 N.T.C. §§ 351 - 355 (Act), the Navajo Tribal Council made it clear that,
The Courts of the Navajo Nation are created by the Navajo Tribal Council within the government of the Navajo Nation and the jurisdiction and powers of the Courts of the Navajo Nation, particularly with regard to suits against the Navajo Nation, are derived from and limited by the Navajo Tribal Council as the governing body of the Navajo Nation.
1 N.T.C. § 353(c) (1988); Navajo Tribal Council Resolution CMY-28-88 (May 6, 1988).
B
The Act controls suits against the Navajo Nation. The Act provides that “Navajo Nation means: (1) The Navajo Tribal Council; ... [and] (4) The *91Delegates to the Navajo Tribal Council.” 1 N.T.C. § 352(1) and (4). The MacDonald suit alleges a cause of action predicated upon actions taken by the Navajo Tribal Council and the council delegates while performing legislative functions. The suit challenges certain resolutions passed by the Navajo Tribal Council. When the Navajo Tribal Council and the delegates to that body are performing legislative functions they fall within the definition of Navajo Nation and the Act applies.
Identifying the true defendant does not depend upon how Chairman MacDonald names the defendants in the heading of his complaint. The general rule, which we adopt today, is that if the ultimate relief sought is relief against the sovereign, then the suit cannot proceed without the consent of the sovereign. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949); Dugan v. Rank, 372 U.S. 609, 620 (1963). Chairman MacDonald seeks to restrain the Navajo Tribal Council and its members from taking legislative action and from carrying out such action. The effect is to prevent the Navajo Tribal Council from carrying out essential governmental functions. The relief sought is ultimately against the Navajo Nation; therefore, the Act applies.
C
A review of the Act's history shows that it was first passed by the Navajo Tribal Council by a vote of 50 in favor and 12 opposed. Chairman MacDonald signed the original Act. Navajo Tribal Council Resolution CMY-42-80 (May 6, 1980). The first amendments to the Act were passed by the Navajo Tribal Council by a vote of 67 in favor, 3 opposed and 2 abstaining; the resolution was signed by Vice Chairman Edward T. Begay. Navajo Tribal Council Resolution CJY-55-85 (July 25, 1985). The next amendments were passed by a vote of 54 in favor, 5 opposed and 2 abstaining. Chairman Peterson Zah signed that resolution. Navajo Tribal Council Resolution CD-60-86 (December 11,1986). The latest major amendments to the Act took place in 1988. The “Resolved” portion of that resolution specifically states that:
2. The Navajo Tribal Council as the governing body of the Navajo Nation further affirms that the jurisdiction and powers of the Courts of the Navajo Nation derive from the Navajo Tribal Council as the governing body of the Navajo Nation and that the courts are without jurisdiction or power to waive the sovereign immunity of the Navajo Nation or that of its authorized officials, representatives, or employees acting within the scope of their official duties and authority.
That resolution was passed by the Navajo Tribal Council by a vote of 67 in favor and 0 opposed. The resolution was signed by Chairman MacDonald. Navajo Tribal Council Resolution CMY-28-88 (May 6,1988). The resolutions show that the Navajo courts did not enact the Navajo Sovereign Immunity Act, but the courts are required to apply it, and that the resolutions were passed with almost *92no opposition from either the current majority or minority factions of the Navajo Tribal Council or the presiding chairman.
Several laws in the Act control our decision in this case. They are the following. The Navajo district courts have no jurisdiction in suits against the Navajo Nation without its express consent. 7 N.T.C. § 257. The Navajo Nation is a sovereign nation which is immune from suit. 1 N.T.C. § 353(a). Public officials or agents of the Navajo Nation may not be sued for injury or damage alleged to have been sustained by “[ljegislative or judicial action or inaction or administrative action or inaction of a legislative or judicial nature, such as adopting or failure to adopt a law or by failing to enforce a law.” 1 N.T.C. § 354(f)(4)(C). As a jurisdictional condition precedent to suit against the Navajo Nation, the plaintiff must comply with the conditions set forth at 1 N.T.C. § 355. Any officer, employee or agent of the Navajo Nation may be sued in Navajo court to compel compliance with the law by use of declaratory or prospective mandamus or injunctive relief, but “[tjhis subsection [g] shall not apply to the Chairman of the Navajo Tribal Council, the Vice Chairman of the Navajo Tribal Council, or the delegates to the Navajo Tribal Council.” 1 N.T.C. § 354 (g)(1) and (3).
Petitioners argue that the Kayenta District Court has no jurisdiction because Chairman MacDonald has not complied with the requirements for suing the Navajo Nation under the Act and that the Act prohibits any plaintiff from making the Navajo Tribal Council and the delegates to the Navajo Tribal Council defendants in any suit. On the other hand, Chairman MacDonald argues that the Act does not apply because this is an action between the Chairman of the Navajo Tribal Council and the Navajo Tribal Council and named delegates to the Navajo Tribal Council. Chairman MacDonald argues that this is a unique case that falls outside the Act because the Navajo Nation is suing itself. Chairman MacDonald further argues that he, in an individual capacity, is suing the Navajo Tribal Council and named delegates to the Navajo Tribal Council.
We agree with petitioners that the Kayenta District Court has no jurisdiction over the MacDonald suit. We will not adopt Chairman MacDonald's argument that, because this is a unique case where the Navajo Nation has sued itself, we must ignore express tribal code law on suits against the Navajo Nation. If we ignore the provisions in the Act, in effect the Navajo courts would be creating their own jurisdiction — a power Navajo courts do not have. Navajo code law expressly provides that the Navajo courts can exercise jurisdiction over suits against the Navajo Nation only when authorized by the Navajo Tribal Council. 1 N.T.C. § 353(c); 1 N.T.C. § 354(c).
Furthermore, we cannot, in good conscience allow Chairman MacDonald to sue the Navajo Nation without complying with the Act, while simultaneously requiring other private plaintiffs to comply with the Act. That would indeed be a gross violation of equal protection under the law. A Navajo tribal official, simply because he or she is an official, enjoys no greater rights under our law than ordinary Navajo Nation citizens.
*93The law is clear that neither Chairman MacDonald, nor any plaintiff can make the Navajo Tribal Council a defendant in a suit of this type. 1 N.T.C. § 354 (g)(3). Neither can the Navajo Tribal Council nor its delegates be sued based upon their actions in performing legislative functions. 1 N.T.C. § 354 (f)(4)(C). The reason is that the Navajo Government must “function without undue interference in furtherance of the general welfare and the greatest good of all the people.” 1 N.T.C. § 354(a). Chairman MacDonald has failed to satisfy the jurisdictional conditions precedent to suing the Navajo Nation. 1 N.T.C. § 355. Every person suing the Navajo Nation must satisfy the conditions to obtain court jurisdiction.
The Kayenta District Court has no jurisdiction over the MacDonald suit; therefore, we are precluded from addressing issues number 3, 4 and 5. A court that decides an issue over which it has no subject matter jurisdiction enters an invalid decision.
By this decision, the Court does not hold that Chairman MacDonald has no recourse through the courts. Chairman MacDonald has ample opportunity to sue the proper officials and obtain a ruling on the validity of any Navajo Tribal Council resolution that he alleges to be invalid. The Court simply holds that this particular suit is not properly brought.
IV
As the above effectively disposes of the petition for a writ of prohibition, the only other issue we will address concerns the Honorable Judge Harry Brown's failure to disqualify himself from presiding over the MacDonald suit.
Canon 3C of the American Bar Association Code of Judicial Conduct, as adopted by the judiciary of the Navajo Nation, provides that:
c. Disqualification.
(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
(d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(1) is a party to the proceeding, or an officer, director, or trustee of a party....
Judge Brown clearly had a duty to disqualify himself from the MacDonald suit at the outset due to his familial relationship to a party in the suit. We hold that a writ of prohibition can be issued to stop a district judge from presiding over a case if the situation from the outset clearly denies the defendant an unbiased and impartial tribunal. There is clear bias here, where Judge Brown is Chairman MacDonald's brother-in-law. Petitioners need not exhaust remedies in the district court to obtain relief in this Court.
*94Y
For the reasons given, the alternative writ of prohibition is made permanent; the temporary restraining order issued by the Kayenta District Court is vacated; the suit entitled MacDonald v. Plummer, et al., No. KY-CV-019-89, filed in the Kayenta District Court, is dismissed; and the Honorable Judge Harry Brown is permanently prohibited from presiding over any proceeding, whether for injunctive relief, declaratory relief, or otherwise, involving any suit where Chairman Peter MacDonald Sr. has an interest. SO ORDERED.
Chief Justice Tso and Associate Justice Bluehouse concur. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502865/ | OPINION
Per curiam.
This is a decision on one of the four questions certified to this Court by the Window Rock District Court. The question is whether the Chairman of the Navajo Tribal Council has the legal authority to appoint judges solely on his own initiative. The answer is no.
I
On March 29, 1989, Judge Robert Yazzie of the Window Rock District Court certified four questions to this Court for decision. On March 30, 1989, we discussed the four questions and accepted them as proper questions for decision in light of Navajo Housing Authority v. Betsoi, 5 Nav. R. 5 (1984) .
We also agreed that the question set forth above can be decided without benefit of briefs from the parties. The laws necessary to answer the question are clear on their faces.
II
The laws needed to answer the question, and specifically the laws governing appointment of judges to the Navajo bench, are found in Title 7 and are as follows:
§ 251. Appointment
The District Courts of the Navajo Nation shall consist of such judges as shall be appointed by the Chairman of the Tribal Council, with confirmation by the Tribal Council.
*98§ 355. Appointment; term of office
(а) The Chairman of the Tribal Council shall appoint the Chief Justice, Associate Justices, and District Court Judges with confirmation by the Navajo Tribal Council from among those recommended by the Judiciary Committee of the Navajo Tribal Council.
§ 354. Qualifications for judicial appointment
The following standards and qualifications shall apply to all judicial appointments to the Courts of the Navajo Nation:
(1) Member of Navaio Tribe and Age. An applicant shall be an enrolled member of the Navajo Tribe of Indians and shall be over thirty (30) years of age.
(2) Criminal Convictions. An applicant shall have never been convicted of a felony, or within the year just past, of a misdemeanor.
(3) Education/Training. Each applicant shall be a high school graduate. Higher education or technical training with A.A., B.A., or B.S. degrees shall be preferred.
(4) Experience. Each applicant shall have at least two (2) years work experience in law related area and have a working knowledge of Tribal, federal and state laws. Those applicants with experience working with the Navajo Nation Courts or with state and federal courts will be preferred.
(5) Knowledge in Navajo Culture and Tradition. Each applicant must be able to speak both Navajo and English, and have some knowledge of Navajo culture and tradition. The applicant must be able to demonstrate:
(A) an understanding of the clan system; and
(B) an understanding of religious ceremonies; and
(C) an appreciation of the traditional Navajo life-style.
(б) Health. Each applicant shall produce a certificate of good health from a licensed physician.
(7) Driver's License. Each applicant shall possess a valid driver's license.
(8) No Physical Addictions. In addition to the requirement of a medical examination pursuant to subsection (6) above, each applicant must attest that he or she has no physical addictions.
(9) Writing Sample. Upon initial screening of applicants by the Judiciary Committee, those applicants selected shall submit a writing sample that illustrates the applicant's ability to clearly show organization and communicative abilities.
(10)Ethics. Each applicant shall show that he or she has neither present nor past conflicts of interests that would have the appearance of partiality or bias in *99cases brought in the courts of the Navajo Nation. Each applicant must demonstrate an impartial background that will indicate neutrality and fairness for proper decision making.
(11) References. Each applicant must be of good moral character and shall submit letters of reference regarding his or her application. Such letters shall outline the applicant's motivation and employment performance, and the applicant's character and capacity for honesty and impartiality.
(12) Management Ability. Each application shall show managerial skills necessary for the smooth operation of a Court. Such information as the applicant’s record of supervising staff, coordinating budget and personnel requirements and verbal communication and writing abilities shall be carefully reviewed by the Judiciary Committee.
(13) Probationary Status Evaluations. A probationary judge shall submit to periodic evaluation of work performance as designated by the Judiciary Committee of the Navajo Tribal Council.
(14) Political Appointments. Each applicant shall be selected and evaluated without regard to political affiliation or association.
Ill
The appointment of judges to the Navajo Nation bench is governed by the Navajo Tribal Code. Once a judicial vacancy is declared to exist by the Judicial Branch, a public announcement is made for submission of applications. The contents of the application, including the supporting documents, must conform to 7 N.T.C. § 354. The initial screening of applicants, which includes review of qualifications pursuant to 7 N.T.C. § 354 and interviews, is conducted by the Judiciary Committee of the Navajo Tribal Council. The power of initial screening is given to the Judiciary Committee by 7 N.T.C. §§ 355, 354(a) and 2 N.T.C. § 572(1).
The Judiciary Committee then submits a list of names of the most qualified applicants to the Chairman of the Navajo Tribal Council. Pursuant to 7 N.T.C. § 355, the Chairman of the Navajo Tribal Council must appoint the potential judge “from among those recommended by the Judiciary Committee of the Navajo Tribal Council.” See also 2 N.T.C. § 572(1).
The Chairman has no independent authority to appoint a person as judge who has not been screened and recommended by the Judiciary Committee. As a collateral matter, the Advisory Committee has absolutely no authority to either recommend, not recommend, confirm, or on its own appoint a person as judge of the Navajo Nation. All recommendations for appointment of judges are initiated by the Judiciary Committee. 2 N.T.C. §§ 572(1), 574(b)(1).
The Advisory Committee at one time had the power “to give final confirmation of appointments to ... Courts and all the other appointments which by exist*100ing law must be confirmed by the Navajo Tribal Council....” 2 N.T.C. § 343(b) (17); Navajo Tribal Council Resolution CJA-1-81 (Jan. 28, 1981). This power, as it relates to the courts, however, was superseded by the Judicial Reform Act of 1985, 7 N.T.C. §§ 101 - 853. Title 7, N.T.C. § 852 specifically repealed 2 N.T.C. § 343(b) (17). The confirmation of judges now rests exclusively with the Navajo Tribal Council pursuant to the Act.
The Chairman's appointee (from the list recommended by the Judiciary Committee) is sent to the Navajo Tribal Council for confirmation. 7 N.T.C. §§ 251, 355(a). Confirmation by the Navajo Tribal Council is complete when the judge receives a majority vote from those delegates voting during a duly called session of the Navajo Tribal Council. See 2 N.T.C. § 172.
The Navajo Tribal Code clearly gives the Navajo Tribal Council, and not the Chairman or Advisory Committee, the final say on which individuals are to serve as judges of the Navajo Nation. The Navajo Tribal Council also has the power to deny a judgeship to any person that the Chairman appoints as a judge. Any judge appointment made by the Chairman or the Advisory Committee without following the laws contained in the Navajo Tribal Code is illegal and shall not be recognized as valid.
The Chairman and the Advisory Committee also have no authority to recall retired or removed judges back to service. The legally appointed Chief Justice has the authority to recall only retired judges to the bench temporarily to help relieve congestion in the courts. 7 N.T.C. § 353(i). This is part of the Chief Justice's administrative duties as supervisor of Navajo Nation judges and as the head of the Judicial Branch. 7 N.T.C. § 371.
Judges who have been removed for misconduct have no status as retired judges. Thus, they can not be recalled for temporary duty on the Navajo Nation bench. 7 N.T.C. § 353(c) and (j). A probationary judge who has been removed by the Chairman upon recommendation of the Judiciary Committee also has no status as retired judge and cannot be recalled to service. 7 N.T.C. § 355(d).
The law is clear that the Chairman and the Advisory Committee have no authority to appoint judges to the Navajo bench solely on their own initiatives. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502866/ | OPINION
Per curiam.
This is a contempt proceeding arising out of willful and intentional misconduct by a member of the Navajo Nation Bar Association.
I
1. On March 24, 1989, this Court issued an alternative writ of prohibition sua sponte to Mr. J. Tonny Bowman ordering Mr. Bowman to desist and refrain from acting as a purported judge of the Navajo Nation. The alternative writ was served on Mr. Bowman.
2. Mr. Bowman was further ordered to refrain from interfering with the work of any court of the Navajo Nation, any judge of the Navajo Nation, or staff of any court of the Navajo Nation.
3. Mr. Bowman was ordered to show cause on March 28, 1989, as to why the alternative writ should not be made permanent.
4. Despite the orders in the alternative writ, and on March 24, 1989, Mr. Bowman interfered with the operation of the Window Rock District Court, intimidated court staff of the Window Rock District Court, stated that he was the new Window Rock District Court judge and proceeded to hold a sham hearing in the case of Navajo Nation v. MacDonald, WR-CV-99-89.
5. Following this sham hearing, Mr. Bowman entered a purported judgment dismissing the action in Navajo Nation v. MacDonald, WR-CV-99-89.
6. On March 27, 1989, this Court ordered Mr. Bowman to show cause on April 3, 1989, as to why he should not be held in contempt of this Court for disobeying the alternative writ of prohibition.
7. Mr. Bowman failed to appear at his scheduled March 28, 1989 show cause hearing on why the alternative writ of prohibition should nat be made permanent.
8. On March 28, 1989, this Court issued a permanent writ of prohibition to Mr. Bowman. The permanent writ found that Mr. Bowman had absolutely no *102authority under Navajo law to act as a judge of the Navajo Nation. Mr. Bowman's purported appointment by Advisory Committee I and by Chairman Peter MacDonald Sr. was declared illegal and held to be null and void.
9. The permanent writ of prohibition ordered Mr. Bowman not to take any action that purports to be those of a judge exercising judicial authority and Mr. Bowman was further ordered not to interfere with the work of any court of the Navajo Nation, any judge of the Navajo Nation, or staff of any court of the Navajo Nation.
10. Despite being properly served with the notice of contempt hearing, Mr. Bowman refused to appear, stating in a letter through Mr. Nelson J. McCabe that this Court had no authority to make him appear at an illegally set hearing.
11. Despite being properly served with the permanent writ of prohibition, Mr. Bowman continued to act as a purported judge of the Window Rock District Court. On April 4,1989, Mr. Bowman issued another order purporting to remove certain non-Indian attorneys from the Navajo Reservation. The order purports to find these attorneys “misadvising, misbehaving and not conducting themselves in a professional manner.” The order purports to be from the Window Rock District Court and is signed by Mr. Bowman. The order further purports to bar these attorneys from giving legal advice to their clients and generally barring these attorneys from practicing law within the Navajo Nation.
II
The Navajo Nation Supreme Court has ultimate authority to grant or deny a person the privilege to practice law within the Navajo Nation. Courts have inherent authority to regulate attorney practice within their jurisdictions and the Navajo courts are no exception. In re Practice of law in Navajo Courts, 4 Nav. R. 75 (1983); In re Practice of Battles, 3 Nav. R. 92, 96 (1982).
The Navajo Nation Bar Association (NNBA), pursuant to delegated power, will usually review complaints against bar members. In re Practice of Law in Navajo Courts, 4 Nav. R. 75. However, if gross misconduct occurs in proceedings before this Court, or when the bar member participates in a scheme to interfere with the operation or proceeding of any court of the Navajo Nation, this Court will immediately discipline the attorney. Even Navajo court rules provide for discipline by this Court:
The Supreme Court may, after reasonable notice and an opportunity to show cause to the contrary, and after hearing, if requested by the offending counsel, take any appropriate action (including ... disbarment) against any attorney or advocate ... for conduct unbecoming a member of the bar, or for failure to comply with any order of the Supreme Court.
Rule 30, NRCAR Mr. Bowman’s case is a prime example of when this Court must use its disciplinary power without deferring to the NNBA.
NNBA members are held to very high standards of professional conduct. This *103Court has held that “the advocates and counselors practicing before the Navajo Courts axe held to the same high standards of professional conduct required of lawyers under the court decisions and the rules of conduct of the American Bar Association.” In re Daniel Deschinny in Contempt of Court, 1 Nav. R. 66, 67 (1972); See also, In re Contempt of Sells, 5 Nav. R. 37, 39 (1985). Mr. Bowman, as a member of the NNBA, is held to the standards of professional conduct set forth by the American Bar Association.
By pretending to be a district judge, holding a sham hearing, intimidating court personnel, interfering with court operations and issuing illegal and invalid orders, and disobeying this Court's orders, Mr. Bowman has violated Canon One of the Rules of Professional Responsibility. That rule directs a lawyer to assist in maintaining the integrity and competence of the legal profession. Specifically, Mr. Bowman violated this disciplinary rule:
DR-1-102 Misconduct.
(A) A lawyer shall not:
(1) Violate a Disciplinary Rule.
(2) Circumvent a Disciplinary Rule through actions of another.
(3) Engage in illegal conduct involving moral turpitude.
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(5) Engage in conduct prejudicial to the administration of justice.
(6) Engage in any conduct that adversely reflects on his fitness to practice law.
Mr. Bowman has also violated Canon Eight which directs Mr. Bowman to “assist in improving the legal system.” Specifically, Mr. Bowman violated this disciplinary rule:
DR-8-102 Statements concerning Judges and other Adjudicatory Officers.
(B) A lawyer shall not knowingly make false accusations against a judge or other judicial officers.
Mr. Bowman made a statement through Mr. Nelson J. McCabe in a letter that this Court had no authority to preside over his contempt hearing and the justices of this Court were engaged in setting illegal hearings. Mr. Bowman further intimidated Window Rock District Court staff by stating that he was the new district judge, and not Judge Robert Yazzie, and he expected their cooperation.
Mr. Bowman directly violated Canon Nine which directs him to “avoid even the appearance of professional impropriety.” Specifically, Mr. Bowman violated the disciplinary rule which states:
DR-9-101 Avoiding Even the Appearance of Impropriety.
(C) A lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official.
*104Mr. Bowman engaged in conduct showing examples of extreme impropriety. Mr. Bowman held himself out as a judge of the district court when he was not. Mr. Bowman took over the district judge's chair and held a sham hearing which resulted in a purported judgment favoring the parties who purported to appoint him to the bench. Mr. Bowman clearly stated through his conduct that he is able to influence the outcome of the proceedings in the Window Rock District Court.
It is appropriate here to remind every member of the NNBA of their duty as set forth in Ethical Consideration 9-6, American Bar Association Code of Professional Responsibility.
Every lawyer owes a solemn duty to uphold the integrity and honor of his profession; to encourage respect for the law and for the courts and judges thereof; to observe the Code of Professional Responsibility; to act as a member of a learned profession, one dedicated to public service; to cooperate with his brother lawyers in supporting the organized bar through the devoting of his time, efforts, and financial support as his professional standing and ability reasonably permit; to conduct himself so as to reflect credit on the legal profession and to inspire the confidence, respect, and trust of his clients and of the public; and to strive to avoid not only professional impropriety but also the appearance of impropriety.
Ill
Mr. J. Tonny Bowman's activities are prime examples of conduct unbecoming a member of the Navajo Nation Bar Association. For these reasons it is the order of this Court that Mr. J. Tonny Bowman is permanently disbarred from the Navajo Nation Bar Association effective this date. The Navajo Nation Bar Association is directed to notify the members of the Bar and the district courts of this Court's order. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502867/ | OPINION
Per curiam.
This is a decision on the final three questions certified to this Court by the Window Rock District Court. The questions are: (1) Is the Chairman empowered to terminate a probationary judge by action of the Chairman alone; (2) Is the probationary judge required to disqualify himself from a proceeding over which the judge is presiding and in which the Chairman is a party defendant when, subsequent to the commencement of the action and entry of a restraining order by the judge against the Chairman, the Chairman purports to remove the judge and declares his intention to refuse permanent appointment to the judge; and (3) 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.
I
On March 29, 1989, Judge Robert Yazzie of the Window Rock District Court certified four questions to this Court. On March 30, 1989, we accepted the four questions as proper questions for decision pursuant to Navajo Housing Authority v. Betsoi, 5 Nav. R. 5 (1984).
On March 31, 1989, we decided one of the four questions certified. In re: Certified Questions I, 6 Nav. R. 97 (1989). This Court may decide certified questions without benefit of briefs, but in this case we exercised our discretion and allowed briefs from the parties. As the temporary restraining order (TRO) entered by the Window Rock District Court was set to expire on April 6, 1989, we ordered that all briefs be filed by 5:00 P.M., April 3, 1989.
On April 3, 1989, five briefs were filed with this Court. On the same date, Mr. *106Thomas Hynes filed a “Notice of Intent to Withdraw” as counsel for the defendants. Several defendants then filed requests for an extension of time to file briefs citing Mr. Hynes’ withdrawal. This Court extended the time for filing of briefs for all parties to 5:00 P.M., April 10, 1989. Under the provisions of Rule 18 of the Navajo Rules of Civil Procedure, the TRO was extended for another fifteen days.
II
Certified Question one is: Is the Chairman empowered to terminate a probationary judge by action of the Chairman alone? The answer is no. The Chairman of the Navajo Tribal Council is not empowered to act alone in either removing a probationary judge or denying a permanent appointment to a probationary judge.
The Navajo Tribal Code laws on the Judicial Branch provide for two ways by which a probationary judge can be terminated. The first is by removal and the second is by denial of permanent appointment. In either case the Chairman cannot act until after the Judiciary Committee of the Navajo Tribal Council has formally acted by recommendation.
A
The law governing removal of a probationary judge is 7 N.T.C. § 355(d).1
At any time during the probationary term of any Chief Justice, Justice or judge, regardless of the length of service of such judge, the Judiciary Committee may recommend to the Chairman of the Navajo Tribal Council that the probationary judge be removed from office. The Chairman of the Navajo Tribal Council, pursuant to such recommendation, may remove such probationary judge from office.
If a probationary judge is to be removed prior to the expiration of his probationary period, the Judiciary Committee must make a recommendation of removal to the Chairman. Pursuant to such recommendation, the Chairman must remove the probationary judge. No further removal proceeding is required. The removal is final.
The above statute reads that “[t]he Chairman of the Navajo Tribal Council, pursuant to such recommendation, may remove such probationary judge from office.” The use of the word “may” appears to give the Chairman discretion to deny the Judiciary Committee’s recommendation of removal; however, the actual word used in the statute is not necessarily controlling when determining whether a duty of a public official is discretionary or mandatory. If a statute directs the doing of something for the public good or for the benefit of a third person, even though worded as discretionary, it will be considered mandatory. Supervisors of Rock Island County v. United States, 71 U.S. 419 (1867); Brooke v. Moore, 60 Ariz. 551, 142 P.2d 211 (1943); State ex rel. Robinson v. King, 86 *107N.M. 231, 522 P.2d 83 (1974).
The above cited statute providing for removal of a probationary judge is not discretionary because the statute gives the public an overwhelming and compelling interest in ensuring that only qualified and ethics-conscious individuals become judges. The Navajo public has an interest in a strong and independent judiciary. Navajo sovereignty is strengthened by a strong and independent judiciary. For these reasons, a probationary judge who has been determined to be unfit for office by the Judiciary Committee must be removed by the Chairman. The public is protected by the removal of the judge.
B
The laws governing denial of permanent appointment to a probationary judge are 7 N.T.C. § 355(a), (c), and (d).
(a) The Chairman of the Tribal Council shall appoint the Chief Justice, Associate Justices, and District Court Judges with confirmation by the Navajo Tribal Council from among those recommended by the Judiciary Committee of the Navajo Tribal Council.
(c) A probationary Chief Justice, Justice or Judge shall not be recommended for permanent appointment unless he or she has successfully completed a course of training accredited forjudges and he or she has a satisfactory performance evaluation as determined by the Chief Justice and the Judiciary Committee of the Tribal Council.
(d) .... At the conclusion of the two-year probationary term, the Judiciary Committee shall review the record and qualifications of each probationary judge and shall recommend to the Chairman whether or not each probationary judge has satisfactorily completed the probationary term and should be appointed to a permanent position. The Chairman shall not appoint to a permanent position any judge not recommended by the Judiciary Committee, but the Chairman, at his discretion, may appoint any judges recommended by the Judiciary Committee to permanent positions. The appointments shall be submitted to the Navajo Tribal Council for confirmation.
Upon initial appointment as a probationary judge, the judge serves a probationary term of two years. 7 N.T.C. § 355(b). During the probationary term, the judge must successfully complete a course of training accredited for judges and have a satisfactory performance evaluation by the Chief Justice and the Judiciary Committee. 7 N.T.C. § 355(c). At the conclusion of the probationary period, the judge is evaluated and recommended for or against permanent appointment.
The process for either appointment to permanent judge or denial of appointment to permanent judge begins with the Chief Justice. A recommendation either for appointment or denial of appointment to permanent judge is made by the Chief Justice pursuant to 7 N.T.C. § 371. The Chief Justice has first-hand knowl*108edge of the work of the probationary judge during the probationary term. The Chief Justice's recommendation will be based upon the training requirement and the performance evaluation required under 7 N.T.C. § 355 (c).
The Chief Justice's recommendation for either permanent appointment or denial of permanent appointment proceeds to the Judiciary Committee. The Committee makes an independent determination of the training requirement and whether the probationary judge has performed satisfactorily over the two-year probationary term. 7 N.T.C. § 355(c), (d). The Judiciary Committee then makes either (1) a recommendation for appointment of the probationary judge as permanent judge or (2) a recommendation that the probationary judge be denied permanent appointment.
If the Judiciary Committee’s recommendation is that the probationary judge be denied permanent appointment, the Chairman must deny the appointment. This directive flows from a provision in 7 N.T.C. § 355(d) which states that “[t]he chairman shall not appoint to a permanent position any judge not recommended by the Judiciary Committee.” This provision mandates the Chairman to deny a permanent appointment to a judge recommended for denial by the Committee, because the law requires the Chairman to appoint judges to permanent positions “from among those recommended [for appointment] by the Judiciary Committee of the Navajo Tribal Council.” 7 N.T.C. § 355(a).
The Chief Justice and the Judiciary Committee have seen the performance of a probationary judge during his probationary term. The Chairman has not. The Chief Justice and the Judiciary Committee have conducted periodic evaluations of the probationary judge while on probation. The Chairman has not. The Chief Justice and the Judiciary Committee are in prime positions to determine if a probationary judge is fit for continued service as a permanent judge. The Chairman is required to follow the Judiciary Committee's recommendation of denial.
Different events occur if the Judiciary Committee recommends a probationary judge to a permanent position. Upon receiving the recommendation for appointment, “the Chairman, at his discretion, may appoint [the] judge[] recommended by the Judiciary Committee to [a] permanent positionQ. The appointment[] shall be submitted to the Navajo Tribal Council for confirmation.” 7 N.T.C. § 355(d).
The words “at his discretion” seem to imply that the Chairman can overrule the Judiciary Committee's recommendation for permanent appointment at the outset. However, the legislative scheme for this particular statute and others in the Judicial Reform Act of 1985 does not allow for that interpretation.
History proves that the Navajo Tribal Council intended the Navajo court system to be strong and independent. For example, in 1958, the Council stated:
(4) In order to give adequate authority to the judges, obtain the best qualified personnel for the courts and to remove the judges, insofar as possible, from the pressure of politics in making decisions and enforcing the law, it is essential that Navajo Tribal judges hereafter be appointed rather than elected.
Navajo Tribal Council Resolution CO-69-58 (October 16, 1958). In 1985, in the *109Judicial Reform Act, the Council again stated:
(9) If the Navajo Nation is to continue as a sovereign Nation and to move forward toward the reality of a three branch form of government, the Supreme Judicial Council must cease to exist, as Tribal sovereignty requires strong and independent Tribal courts to enforce and apply the law.
(13) In furtherance of the goal of strengthening the Courts of the Navajo Nation, the Judicial Branch must have a court which will hear cases on appeal and render a final judgment based on law, equity, and tradition. The Supreme Court will be that court, a court which will have final appellate jurisdiction.
(14) Title 7 of the Navajo Tribal Code must be amended in order to carry out the intent of strengthening the Navajo Nation Courts by providing for the redesignation of the Navajo Tribal Court of Appeals as the Supreme Court of the Navajo Nation.
(17) In order to preserve an independent judiciary, it is necessary for the Judicial Branch to be able to hire, discipline and fire employees without resort to the Navajo Nation Personnel Policies and Procedures and Personnel Department.
Navajo Tribal Council Resolution CD-94-85 (December 4, 1985).
Other sections in Title Seven of the Navajo Tribal Code have the purpose of appointing only those people who meet the qualifications for judges, 7 N.T.C. § 354; providing that judges must serve a probationary term of two years, 7 N.T.C. § 355(b); and providing that probationary judges must complete a course of training and receive a satisfactory performance evaluation, 7 N.T.C. § 355(c). All these sections and others were intended to provide the Navajo Nation with a strong and independent judiciary.
The overall intent of the Navajo Tribal Council is to strengthen the Navajo courts and provide for independence of the Judicial Branch. Judges play a vital role in pursuit of this goal; therefore, the law provides that appointment of permanent judges is concluded by confirmation by the Navajo Tribal Council. 7 N.T.C. § 355(a), (d).
The legislative scheme does not allow the Chairman's denial of permanent appointment to a probationary judge to be final. The public has an overwhelming and compelling interest in ensuring that the best qualified people are appointed judges. The Chief Justice and the Judiciary Committee have knowledge of the performance of a probationary judge; therefore, if they recommend a probationary judge for permanent appointment, the Chairman must forward that appointment to the Navajo Tribal Council for its decision.
The Chairman's discretion is limited to making known his reasons why the Judiciary Committee's recommendation for appointment must not be granted. The Chairman must send the Committee’s recommendation and his reservations *110to the Council. The Navajo Tribal Council will make a final decision as to whether to grant permanent status to this type of probationary judge. This is how the laws governing appointment of permanent judges must be interpreted so that the checks and balances implicit in these laws will work.
This certified question concerns a letter dated March 16, 1989, wherein Chairman Peter MacDonald Sr. declined to appoint Judge Robert Yazzie as a permanent judge of the Navajo Nation. Judge Yazzie has been recommended for a permanent appointment as district judge of the Navajo Nation by the Chief Justice and the Judiciary Committee of the Navajo Tribal Council. Chairman MacDonald's denial of appointment of Judge Yazzie is not final under Navajo law. The final decision rests with the Navajo Tribal Council. In addition, there is still the question of whether Chairman MacDonald has legal authority to review the appointment of Judge Yazzie. For these reasons, Judge Robert Yazzie is still a valid judge of the Navajo Nation until denied appointment by the Navajo Tribal Council.
Ill
Certified question two is: Is the probationary judge required to disqualify himself from a proceeding over which the judge is presiding and in which the Chairman is a party defendant when, subsequent to the commencement of the action and entry of a restraining order by the judge against the Chairman, the Chairman purports to remove the judge and declares his intention to refuse permanent appointment to the judge? The answer is no. Like certified question one, this question arises out of a particular set of facts.
A
On January 10, 1989, the Chief Justice recommended probationary Judge Robert Yazzie for permanent appointment. On January 13, 1989, the Judiciary Committee recommended Judge Yazzie for permanent appointment. Both recommendations were conveyed to Chairman Peter MacDonald Sr. on January 20, 1989. On March 22, 1989, Navajo Nation v. MacDonald, No. WR-CV-99-89, was filed in the Window Rock District Court and a TRO (Temporary Restraining Order) was requested. Judge Yazzie granted the TRO. On March 23, 1989, Chairman MacDonald and the other defendants filed a petition for a writ of prohibition in this Court arguing that the Navajo Nation Sovereign Immunity Act barred the action and therefore the district court lacked jurisdiction. At the insistence of defendants’ counsel, oral argument on the alternative writ was heard at 4:00 P.M. on March 23, 1989. At approximately 5:05 P.M., on March 23, 1989, a letter dated March 16, 1989, and signed by Chairman MacDonald was delivered to the Office of the Chief Justice. The letter stated that Chairman MacDonald was declining Judge Yazzie's permanent appointment and that from March 16, 1989, he was no longer a judge.
*111B
On February 6, 1978, the judges of the Navajo Nation agreed to abide by the Code of Judicial Conduct as promulgated by the American Bar Association. Canon 3C is that part of the Code setting standards for disqualification. It states:
3C: Disqualification.
(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
(a) he has a personal bias or prejudice concerning a party, or personal knowedge of disputed evidentiary facts concerning the proceeding;
(b) he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(c) he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) is acting as a lawyer in the proceeding;
(in) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) is to the judge’s knowledge likely to be a material witness in the proceeding.
Although this is a certified question from the district court, where certification was consented to by counsel for the plaintiffs and counsel for Chairman MacDonald and the other defendants, the Court will examine the question from the perspective of the parties.
The answers to certified questions numbers one and three make it clear that the Chairman is only one step in the process of appointing or terminating a judge. The same is true for the Navajo Tribal Council. Thus, the interests of both parties are balanced. We will not hold that a probationary judge must disqualify himself in all matters in which any person or entity involved in his tenure as probationary judge and the permanent appointment process is a party. That will defeat the intent and legislative scheme of Title 7. The intent and legislative scheme of Title 7 is to guarantee an independent judiciary. We will not hold that intent and scheme ineffective.
*112If a moving party acts deliberately with an ulterior motive to provoke a judge to become biased or prejudiced against that party, the judge will not be disqualified. Smith v. Smith, 115 Ariz. 299, 564 P.2d 1266 (1977). “A party cannot engage in conduct which has the outward appearance of being improper, and then complain of the consequences when its conduct is taken at face value.” In re Union Leadership Corp., 292 F.2d 381, 391 (1st Cir. 1961).
The personal bias or prejudice concerning a party which is sufficient to disqualify a judge must arise from “an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” United States v. Grinnell Corp., 384 U.S. 563 (1966). “A judge's reasonable belief that a party was acting with a purpose of disqualifying him, his conclusion that such action was contemptuous and reprehensible, and even a very considerable showing of irritation, is in no way equivalent to personal bias and prejudice.” In re Union Leadership Corp., 292 F.2d at 390.
Waiver of disqualification will be found where a party having knowledge of the facts upon which disqualification would be grounded asks the court to rule on material issues. State v. Chavez, 45 N.M. 161, 113 P.2d 179, 187 (1941). In this situation the existence of the March 16, 1989 letter was unknown to this Court, to Judge Robert Yazzie, and presumably to the plaintiffs at the time of the hearing on the TRO and the hearing on the request for an alternative writ. The only conclusion that the Court can reach is that defendants have waived disqualification on the grounds that the defendants failed to move for disqualification at the outset.
It is puzzling why defendants did not ask for a writ of prohibition to Judge Yazzie on the grounds that he had been terminated as a judge and therefore had no jurisdiction to act. Instead the defendants asserted only the bar of the Sovereign Immunity Act.
If any grounds for disqualification exists, they must be asserted to Judge Yazzie and ruled upon by him. In the answer to the first certified question, the Court has concluded that Judge Robert Yazzie has not been terminated as judge and that he does not lack jurisdiction to hear the case of Navajo Nation v. MacDonald, No. WR-CV-99-89. This does not foreclose any motions for disqualification which any party may properly make to the district court.
IV
The final certified question is: 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 answer is yes, but after certain conditions are met. The Court will approach this question as proposed by defendants’ counsel, Mr. Thomas Hynes:
The defendants would ask this Court to forget about the political ramifications of its decision. Forget about what is in the best interests of Peter MacDonald and Johnny R. Thompson. Forget about what is in the best inter*113ests of Leonard Haskie and Irving Billie. Forget about what is in the best interests of various members of the Tribal Council. Forget about what is in the best interests of all the politicians who are jockeying for position on the Navajo Reservation, and rather think about what is in the best interests of the Navajo People.... (emphasis added).
Defendants’ Brief on Certified Question Four at 27 (Filed April 10, 1989).
A
What authority the Navajo Tribal Council has and what authority the Chairman and Vice Chairman have are best answered by reviewing the history of the Navajo Tribal Government, the creation of the offices of the Chairman and Vice Chairman, and the allocation of powers within the Navajo Government. The briefs for the parties argued those points.
We initially reject the defendants’ argument that “[t]he relationship between the Chairman and Vice Chairman and the Tribal Council must be viewed in the light in which it existed in February of 1989.” Defendants’ Brief at 6. The Navajo Government has operated in varying forms over the centuries and the history of the Navajo people goes even further back in time. It would be a mistake to consider only a minute fraction of Navajo governmental existence.
The first attempt to form a centralized government for the Navajo people occurred at Fort Sumner, New Mexico. On May 29, 1868, ten Navajo men were selected by the Navajos then in captivity to serve as their delegates in consummating a treaty with the United States. One of the ten men, Barboncito, was selected by the delegates as their Chief. General William Sherman, on behalf of the United States, recognized Barboncito as the Chief of all the Navajos. Whatever power Barboncito had over the Navajo people at that time was apparently given by General Sherman. General Sherman said:
We will now consider these ten men your principal men and we want them to select a chief, the remaining to compose his Council for we can not talk to all the Navajos. Barboncito was unanimously elected Chief - now from this time out you must do as Barboncito tells you, with him we will deal and do all for your good. When we leave here and go to your own country you must do as he tells you and when you get to your country you must obey him ....
Record of the Navajo Treaty - 1868 at 7 (K.C. Publications 1968).
In 1923, the present Navajo Tribal Council was established by regulations promulgated by the Commissioner of Indian Affairs and approved by the Assistant Secretary for Indian Affairs. The Navajo Tribal Council was “created [as] a continuing body to be known as and recognized as the ‘Navajo Tribal Council’ with which administrative officers of the [United States] government may directly deal in all matters affecting the tribe.” Regulations Relating to the Navajo Tribe of Indians § 3 (January 7, 1923).
The original Tribal Council was selected to act on behalf of the Navajo people *114in approving mineral leases on Navajo lands. R.W. Young, A Political History of the Navajo Tribe (1978); see also, Brief of Carol K. Retasket at 13; Brief of Amicus Curiae on Behalf of Plaintiffs at 4. The regulations further established the positions of Chairman and Vice Chairman of the Navajo Tribal Council. The Chairman was to be elected by the Council delegates by majority vote from outside the Council membership, and the Vice-Chairman was to be elected from the Council membership. Regulations at § 10.
In the summer of 1923, the newly created Tribal Council adopted the form of government proposed by the commissioner's regulations and thereby agreed to the creation of the offices of Chairman and Vice Chairman. The original Tribal Council elected its first Chairman, Chee Dodge, from outside its membership on My 7, 1923. The Vice Chairman was not elected until 1928. The first public election of the Chairman and Vice Chairman was not held until 1938. R.W. Young, A Political History of the Navajo Tribe (1978).
The original Navajo Tribal Council wasted no time in exercising authority as the governing body of the Navajo Nation. In 1923, the Council gave the Commissioner to the Navajo Tribe broad power of attorney to sign oil and gas leases on behalf of the Navajo Nation. The Council revoked this power in 1933. R.W. Young, A Political History of the Navajo Tribe (1978) .
In the ensuing years, the Council gave the office of Chairman authority to appoint executive committees to oversee routine tribal matters, to sign business documents on behalf of the Council, and to create plans of operations and approve modifications to tribal enterprises to facilitate tribal funds. Salaries were even approved for the Chairman and Vice Chairman. Navajo Tribal Council Resolutions of April 10,1937; July 19,1937; October 14,1949; and May 8,1951.
The Council's delegation of authority to the office of Chairman increased substantially since the 1930s. The Navajo Tribal Code is replete with laws proving that the source of power to be exercised by the Chairman and Vice Chairman is the Navajo Tribal Council, as the governing body of the Navajo Nation. Some examples are; (1)2 N.T.C. § 343(c)(1), which allows the Chairman to chair the Advisoiy Committee; (2) 2 N.T.C. § 374(b)(5), which empowers the Chairman and the Budget and Finance Committee to review and approve contracts, subcontracts, and agreements which do not exceed $50,000.00; and (3) 2 N.T.C. § 1001, which outlines the powers and duties of the Chairman and Vice Chairman as follows:
(a) The Chairman of the Navajo Tribal Council shall preside over the deliberations of the Council and shall also act with full authority as the chief executive officer of the Tribe’s administrative organization in the conduct, supervision, and coordination of Tribal programs as approved by the Council. He shall have ultimate responsibility for the proper and efficient operation of all Tribal executive divisions and departments. He shall represent the Tribe in negotiations with governmental and private agencies and meet with many Off-Reservation organizations and groups in order to create favorable public opinion and good will toward the Navajo Tribe. The Chairman shall appoint various standing Committees, including the Advisory Committee, within the *115Council, boards and commissions within and outside the Council, to help in determining Tribal policy and procedures and to suggest appropriate action on resolutions.
The Chairman's functions include but are not limited to those set out in this subsection.
(b) The Vice-Chairman of the Tribal Council, during the absence of the Chairman, shall preside over Tribal Council meetings and when so directed by the Chairman, perform designated duties of the chief executive officer. The Vice-Chairman may preside over meetings of the Advisory Committee and can sign documents on behalf of the Tribe when authorized by the Tribal Council.
Even the statutes say that the Chairman is “Chairman of the Navajo Tribal Council” and not of the Navajo Nation. 2 N.T.C. § 281(a). The same is true for the Vice Chairman of the Navajo Tribal Council. 2 N.T.C. § 282(a).
After reviewing the history of the relationship between the Council and the Chairman and Vice Chairman, we conclude that all authority of the offices of Chairman and Vice Chairman are derived from the Council. The powers are incumbent in the offices to be exercised by those people elected by the Navajo people to these two offices. The powers are there to be exercised in the best interests of the Navajo people.
There is nothing in either the history of the present Navajo Government or in the Tribal Code to support the argument that the source of the Chairman's and Vice Chairman’s governmental authority is the voting public. In addition, there is nothing to support the argument that the offices of the Chairman and Vice Chairman are independent and separate from the Navajo Tribal Council. They all live in the same hogan and need each other to function.
The Navajo Nation Council clearly has authority to withdraw, limit, or supervise the exercise of power it gives to the offices of Chairman and Vice Chairman. The power to create an office and delegate authority to that office includes the power to abolish, withdraw, limit, or supervise exercise of those powers by the office holder. The Navajo Tribal Council can prevent a Chairman and Vice Chairman from exercising certain powers it has delegated to the offices of Chairman and Vice Chairman, and the Council can specify how those powers can be exercised. The latter has frequently been done by the Council as shown by the history of the Navajo Government.
B
The question then arises whether the Navajo Tribal Council can place a Chairman or Vice Chairman on administrative leave with pay. The answer is yes, because the power to place those officials on leave is a part of the power the Council has to withdraw, limit, or supervise the exercise of powers it has bestowed on the offices of Chairman and Vice Chairman.
Arguments are made that a Chairman or Vice Chairman cannot be put on administrative leave with pay because there are no provisions in the Navajo Tribal Code for placing those public officials on leave. True, such provisions are *116not in the Code, but to so hold ignores the fact that the offices of Chairman and Vice Chairman were created by the Council and whatever powers are in those offices were placed there by the Council. Without the Council giving and defining those powers the Chairman's or Vice Chairman's powers would not exist. If a Chairman or Vice Chairman is not exercising powers as defined by the Council, or if the powers are not exercised in the best interests of the Navajo people, or if the powers are being used to provide for personal gain or profit, then surely the Council can restrict use of those powers.
Arguments are also made that placing a Chairman or Vice Chairman on administrative leave with pay is the same as removal of these officials from office. We disagree.
The Navajo Personnel Policies and Procedures, appended as Memorandum No. 1 to Title Two of the Navajo Tribal Code, is instructive on administrative leave. Section 14, labeled administrative detail, states:
In unusual circumstances, involving expediency or necessity, it may be necessary for an employee to absent himself from his regular duties and enter upon a period of administrative detail for such purposes and duties as may be determined to be in the best interest of the Tribe.... After completing this special administrative detail to the fullest satisfaction of the Tribe, the employee shall be entitled to return to his same job with commensurate fringe benefits.
The test for whether the official is on administrative leave is as follows. Within the Navajo Nation, administrative leave is invoked in unusual circumstances, involving expediency or necessity, for such purposes as may be determined to be in the best interests of the Navajo Nation. The leave must be for a specified period of time, and during this time the employee is to absent himself from his regular duties. Administrative leave does not remove a person from his position. The person is entitled to return to his same job with commensurate fringe benefits after the Tribe is fully satisfied that the person may resume his duties.
In contrast to administrative leave, removal is the dismissal of an official from office. Black's Law Dictionary 1164 (5th ed.1979). The official, removed, has no further ties to the office from which he was removed, no right to exercise powers of the office, no position or title, and no attendant pecuniary benefits. The removed official is not entitled to return to his same job and he cannot assume and exercise the powers of the office.
Although the Chairman and Vice Chairman receive pecuniary and other fringe benefits from their positions, this Court is not holding that the Navajo Personnel Policies and Procedures apply to these officials. Section 14 of the Personnel Policies is used only to establish the test to be used by the district court in determining whether an official is on administrative leave or is in fact removed.
C
Certain grounds must exist before the Navajo Tribal Council can consider placing a Chairman or Vice Chairman on administrative leave. No Chairman or *117Vice Chairman should be placed on leave simply because a majority of the Tribal Council disagree with his policies or because of a personality conflict between these officials.
Public officials serving in the Navajo Government, no matter what position they hold, are trustees of the Navajo people. The government officials occupy a fiduciary relationship to the Navajo people. The Navajo people have placed a high degree of trust in these officials; therefore, Navajo government officials owe an undivided duty to the Navajo people, and to serve the best interests of the Navajo people.
All Navajo government officials are obligated to exercise the powers of their offices honestly, faithfully, legally, ethically, and to the best of their abilities, in a way which is beyond suspicion of irregularities. In short, these officials are obligated to perform primarily in the best interests of the Navajo people. The Navajo people do not expect their officials to exercise powers corruptly or use powers for personal gain or profit. In fact, 2 N.T.C. § 1001 places a duty on the Chairman to “represent the Tribe in negotiations with governmental and private agencies and meet with many off-reservation organizations and groups in order to create favorable Public opinion and good will toward the Navajo Tribe.” (emphasis added).
The Navajo traditional concept of fiduciary trust of a leader (naat'aani) is just as relevant here. After the epic battles were fought by the Hero Twins, the Navajo people set on the path of becoming a strong nation. It became necessary to select naat'aaniis by a consensus of the people. A naat'aanii was not a powerful politician nor was he a mighty chief. A naat'aanii was chosen based upon his ability to help the people survive and whatever authority he had was based upon that ability and the trust placed in him by the people. If a naat'aanii lost the trust of his people, the people simply ceased to follow him or even listen to his words. The naat'aanii indeed was expected to be honest, faithful and truthful in dealing with his people.
The Navajo Tribal Council can place a Chairman or Vice Chairman on administrative leave with pay if it has reasonable grounds to believe that the official seriously breached his fiduciary trust to the Navajo people and if the leave will be in the best interests of the Navajo Nation. Leave which is in the best interests of the tribe will serve to protect the tribe against conduct which threatens or has some direct effect on the property and resources of the tribe, or the political integrity, economic security or health, safety, and welfare of the tribe.
Serious allegations pointing to breach of fiduciary duties by the Chairman or Vice Chairman solicited under oath by a properly authorized investigatory body qualify as grounds for placing the official on administrative leave with pay. These allegations of misconduct may involve fraud, bribery, receipt of kickbacks, or of the official's involvement in a conspiracy to cover up misconduct, or to personally profit from transactions involving Navajo public property. A Chairman or Vice Chairman may be put on administrative leave if serious allegations of criminal activity are lodged against him which if brought in a state or *118federal tribunal would be charged as a felony.
Serious allegations of any of the factors given in 11 N.T.C. § 211, combined with some evidence of those allegations, are also grounds for placing a Chairman or Vice Chairman on administrative leave. Administrative leave may be an option prior to initiating proceedings for removal under this section. Serious allegations combined with some evidence that a Chairman or Vice Chairman may have violated a tribal law, which if proven true would subject the official to removal, are also grounds.
If a felony charge is actually brought against a Chairman or Vice Chairman in a federal or state court, or if either a criminal charge or civil suit stemming from violation of the public trust is brought against these officials in Navajo court, then those grounds may be used to place the official on administrative leave.
D
The final question posed is what are the due process requirements, if any, attendant to the process of putting a Chairman or Vice Chairman on administrative leave. The Navajo Nation Bill of Rights, 1 N.T.C. § 3 (1986), states:
Life, liberty and the pursuit of happiness are recognized as fundamental individual rights of all human beings. Equality of rights under the law shall not be denied or abridged by the Navajo Nation on account of sex nor shall any person within its jurisdiction be denied equal protection in accordance with the laws of the Navajo Nation, nor be deprived of life, liberty or property, without due process of law. Nor shall such rights be deprived by any bill of attainder or ex post facto law.
Navajo law governs the interpretation of due process under the Navajo Bill of Rights and the Indian Civil Rights Act, 25 U.S.C. § 1302(8) (1968). Billie v. Abbott, 6 Nav. R. 66 (1988). Due process under the Navajo Bill of Rights and the Indian Civil Rights Act
must be interpreted in a way that will enhance Navajo culture and tradition.... To enhance the Navajo culture, the Navajo courts must synthesize the principles of Navajo government and custom law. From this synthesis Navajo due process is formed.
When Navajo sovereignty and cultural autonomy are at stake, the Navajo courts must have broad-based discretion in interpreting the due process clauses of the ICRA and NBR, and the courts may apply Navajo due process in a way that protects civil liberties while preserving Navajo culture and self-government.
Billie v. Abbott, 6 Nav. R. at 74.
The right to a due process hearing is required only upon a showing of governmental action which adversely affects a person's life, liberty or property interest. Yazzie v. Jumbo, 5 Nav. R. 75,76 (1986). Procedural due process requires notice, an opportunity to be heard and to defend before a tribunal with jurisdiction to *119hear the matter. Id. at 76.
Any due process requirements attendant to placing a Chairman or Vice Chairman on administrative leave will depend upon a finding that the official's life, liberty or property interest has been adversely affected by Navajo governmental action. In a prior case involving an elected official we said, “An elected official does not have a property right in public office.” In re Removal of Katenay, 6 Nav. R. 81, 85 (1989).
However as in Katenay, a statutory scheme can be the source of due process rights for an elected official. Id. at 85. There are a number of basic protections that the Navajo Tribal Council should afford while placing a Chairman or Vice Chairman on administrative leave. These are: (1) the Navajo Tribal Council must act in a properly convened session with a quorum as established in the Navajo Tribal Code; (2) an agenda must be properly adopted by the Council, although procedures for presentation of resolutions and for voting on resolutions are within the power of the Tribal Council; (3) the resolution placing a Chairman or Vice Chairman on administrative leave must pass by a majority vote of the Navajo Tribal Council present, see 2 N.T.C. § 172(b); and (4) the resolution placing a Chairman or Vice Chairman on administrative leave must not be a bill of attainder.
A bill of attainder is apparently unknown to traditional Navajo culture. The parties did not argue anything from Navajo culture or tradition which would mirror the elements of a bill attainder as commonly defined by American law.
We adopt the common definition of bill of attainder; therefore, under the Indian Civil Rights Act and Navajo Bill of Rights, a bill of attainder is a law that legislatively determines guilt and inflicts punishment upon an identifiable person or group without the protections of trial in the Navajo courts. This definition has two elements: first, an element of punishment must be inflicted by some tribal authority other than tribal judicial authority; and second, an element of specificity, that is, a singling out of an individual or identifiable group for infliction of punishment.
Nixon v. Administrator of General Services, 433 U.S. 425 (1977), recognizes three tests for determining whether punishment is present. These tests are adopted by this Court. The first test is the historical experience test. This test determines punishment in terms of what historically has been regarded as punishment for purposes of bills of attainder and bills of pains under the law of England and the United States. The historical test may include what historically has been regarded as punishment under Navajo common law. See In re Estate of Belone, 5 Nav. R. 161 (1987), for discussion of Navajo common law. The second test is the functional test. This test considers the extent to which a law challenged as a bill of attainder furthers any nonpunitive purposes underlying the law. The third test is the motivational test. The inquiry here is whether the legislative record evinces a legislative intent to punish.
The district court will determine whether a resolution passed by the Navajo Tribal Council placing a Chairman or Vice Chairman on administrative leave with pay is a prohibited bill of attainder. The district court will use the elements set forth above to make that determination.
. A construction of 7 N.T.C. § 352 is not necessary to a decision on the questions certified. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502868/ | OPINION
Opinion delivered by
Bluehouse, Associate Justice.
This 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.
On 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.
A 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*121erwise attempt to explain why his brief was filed late. We dismiss the appeal.
NRCAP 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).
The 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.
The 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).
Appellant has failed to meet the minimal standards which the rules demand. As the Second Circuit has repeatedly held regarding briefs and motions untime*122ly 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.
Furthermore, 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).
Finally, 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.
The 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.
Failure 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 *123brief 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.
Appeal dismissed. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502869/ | OPINION
Opinion delivered by
Tso, Chief Justice.
I
This Court has reviewed appellee's motion to dismiss this appeal because appellant neither filed a motion for reconsideration with the Crownpoint District Court prior to the filing of this appeal nor filed a brief-in-chief with this Court along with his notice of appeal.
On February 22, 1989, appellant was found guilty by a jury for the crime of unlawful imprisonment, 17 N.T.C. § 311. The Crownpoint District Court sentenced appellant to 120 days jail term plus $100.00 fine, but the court suspended the sentence of 120 days and placed appellant on four months probation.
On March 23, 1989, appellant filed a notice of appeal with this Court, but he did not include a brief with the notice to explain the grounds for the appeal. Finally, on May 8,1989, appellant filed his brief. The motion for reconsideration, however, was not filed with the district court until June 1, 1989.
II
Pursuant to NRCrP 21, “an appeal may be taken in the manner provided by the Rules of Appellate Procedure.” NRAP 5(d) states that “[n]o appeal shall be heard unless the appellant has filed a motion for reconsideration with the district court.” (emphasis added). Previously, the Court interpreted the requirement for filing a motion for reconsideration with the district court to be a mandatory prerequisite to appeal pursuant to NRAP 5(d). See orders in Sorrell v. Navajo Nation, 3 Nav. R. 23 (1980), and Catron v. Yazzie, 1 Nav. R. 253 (1978). *125Presently, all criminal appeals are taken pursuant to the Navajo Rules of Appellate Procedure (1978 ed.).
The record reveals that appellant filed a motion for reconsideration with the Crownpoint District Court on June 1, 1989, more than 70 days after he filed a notice of appeal with the Navajo Nation Supreme Court. In Catron, 1 Nav. R. at 253, this Court found that “[t]he filing of a Motion for Reconsideration subsequent to the appeal is not in compliance with [NRAP] 5(d).” This Court has always treated the timely filing of a motion for reconsideration as a jurisdictional requirement in criminal cases. When a motion for reconsideration is not timely filed or is never filed, the Court's only recourse is to dismiss the appeal.
Additionally, a criminal appeal must be filed in accordance with the requirements established in NRAP 2. “All appeals shall originate by filing a Notice of Appeal... including with it a brief explaining the grounds for the appeal.” NRAP 2(a). In other words, the brief is a part of the notice of appeal.
The time requirement for filing the brief is also specified in NRAP 2. Pursuant to NRAP 2(c), “[t]he Notice of Appeal, the brief, ... and the copy of the final judgment shall be filed with the Clerk within thirty calendar days of the date [of] the final judgment.... No extension of time within which to file the appeal shall be granted, and no appeal filed after the expiration of the thirty days period shall be allowed.” (emphasis added). The record indicates that appellant did not comply with NRAP 2(c) and filed his brief-in-chief more than 75 days after entry of the district court's final judgment.
Litigants must adhere to the requirements established in NRAP 2(a) and (c) and 5(d) in order for the Court to have jurisdiction over criminal appeals. First, pursuant to NRAP 2(a), a notice of appeal must be accompanied by the brief-in-chief in all criminal appeals. Second, a notice of appeal and a brief-in-chief must be filed in a timely manner pursuant to NRAP 2(c). Third, pursuant to NRAP 5(d), a motion for reconsideration must be filed with the district court before an appeal is filed in the Navajo Nation Supreme Court. The appellant did not adhere to the requirements of NRAP 2(a) and (c) and 5(d); therefore, this Court does not have jursidiction to hear this criminal appeal.
Finally, appellant moved to strike appellee's motion to dismiss alleging that the motion was untimely. This Court finds that the motion to strike untimely pleading is irrelevant to the ultimate disposition of this case. The Court is simply without jurisdiction.
It is ordered that, pursuant to NRAP 2(a) and (c) and 5(d), appellee's motion for dismissal of the appeal is granted. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502870/ | OPINION
Opinion delivered by
Tso, Chief Justice.
I
Appellant, Leonard Gordon Kinney Jr., was issued two civil traffic infraction tickets. The tickets were issued January 8, 1989 at 11:59 P.M. and January 9, 1989 at 12:12 A.M.
On February 28, 1989, the Tuba City District Court ordered Kinney to remit civil assessment fees of $75.00 to the court within thirty days; failure to do so would result in issuance of an order to show cause.
Counsel for Kinney filed an entry of appearance with the district court on March 1, 1989, and simultaneously for a motion to vacate the district court's February 28, 1989 order.
On March 10,1989, Appellee, Navajo Nation, requested by letter that the district court deny Kinney's motion to vacate. Navajo Rules for Pleading Forms and Motions, Rule 4.g. (1982). Appellee cited Kinney's failure to file a brief in support of his motion to vacate as grounds for denial of the motion. Id., Rules 4.e. & 4.f. The district court denied Kinney's motion to vacate on March 28, 1989.
Kinney filed a notice of appeal with this Court on March 29, 1989. The Supreme Court Clerk received the district court records on April 28, 1989. On April 28, 1989, the Supreme Court Clerk mailed the notice of docketed appeal to counsels of record in accordance with Rule 10(b) of the Navajo Rules of Civil Appellate Procedure (NRCAP) (1987 ed.). The notice further stated that briefs were due pursuant to NRCAP 12. On June 26,1989, appellee filed this motion to dismiss the appeal, citing Kinney's failure to file a brief in support of his appeal as required by NRCAP 12. We grant appellee's motion to dismiss the appeal.
*127II
Pursuant to NRCAP 12(a), the appellant has thirty days after the date the Supreme Court Clerk mails the notice of docketed appeal to file his brief. Further, NRCAP 5(c) provides the appellant an additional seven days to file a brief where, as here, the Court serves the Rule 10(b) notice by mail. Kinney had until June 5, 1989 to file his brief. No brief was filed.
Additionally, NRCAP 5(b) provides the parties with the opportunity to file for an extension of time, as long as they do so before the expiration of the prescribed time. Begay v. Begay, 6 Nav. R. 120, 121 (1989); In re Estate of Wauneka Sr., 6 Nav. R. 63, 64 (1988). “The deadline is not dispensed with casually, and a showing of good cause is a prerequisite.” Begay, 6 Nav. R. at 121. No request for extension of time was filed by Kinney.
The Navajo Rules of Civil Appellate Procedure provides consequences for failure to timely file briefs. With respect to the failure by the appellant the rule states, “[i]f an appellant does not timely file a brief, the Supreme Court, upon appellee's motion, may dismiss the appeal.” NRCAP 12(c). Accordingly, appellee, the Navajo Nation, filed a motion to dismiss the appeal because of Kinney's noncompliance with NRCAP 12(c).
Policing the time at which briefs are filed is one of the most vexing problems in judicial administration. In Begay, the appellant filed his brief with this Court two days late, yet prior to appellee's filing of her motion to dismiss the appeal under NRCAP 12(c). This Court reaffirmed its discretionary authority to accept a brief that is filed late, but stated, “[ajbsent a showing of good cause for untimely submission, however, the appeal will be dismissed.” Begay, 6 Nav. R. at 122.
Here, Kinney did not file a brief prior to appellee's motion to dismiss, which was filed with this Court twenty-one days after the prescribed deadline for filing appellant's brief. The fact is Kinney did not file a brief at all.
The failure of Kinney to file a brief puts the appeal in a state of perpetual standstill. The appellee is unable to file a response brief as required by NRCAP 11(b) and NRCAP 12(a). Hence, NRCAP 12(c) permits the appellee to move for dismissal of the appeal.
Further, it is generally known that an issue not briefed is waived. See, e.g., Brown v. Sielaff, 474 F.2d 826 (3rd Cir. 1972). NRCAP 11(a) (5) requires a statement of the issues presented for review. If the appellant files no brief, it is impossible for the Court to know what the issues are, and thus, the Court is unable to determine whether probable cause exists to grant the appeal.
This Court views the failure to file a brief as a lack of good faith and an indication of the party's profound indifference to the final disposition of the case. Begay, 6 Nav. R. at 122. Where the appellant fails to file a brief in accordance with NRCAP 12, and the appellee moves to dismiss the appeal pursuant to NRCAP 12(c), this Court will summarily dismiss the appeal. A brief received subsequent to appellee's motion to dismiss will be treated as if no brief had *128been filed.
Kinney did not file a brief with this Court within the deadline provided by NRCAP 12(a), nor was a brief received prior to appellee's motion to dismiss. We therefore dismiss the appeal.
Appeal dismissed. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502874/ | OPINION
Opinion delivered by
AUSTIN, Associate Justice.
I
This is an appeal from a Navajo Nation Bar Association administrative ruling revoking the bar membership of the appellant, Mehl Tafoya. The Navajo Nation Bar Association Board of Bar Commissioners affirmed the revocation, and Tafoya appealed to this Court.
In May 1987, Tafoya applied for admission to the Navajo Nation Bar Association (NNBA). At the time Tafoya applied, the NNBA By-Laws required state bar membership for all non-Indian applicants. Tafoya, a non-Indian, failed to satisfy this criterion. He had never attended law school and was not a member of any state bar association nor licensed to practice before any state court. Tafoya never claimed to possess such credentials. In fact, he clearly indicated on his NNBA application that he had never received a formal legal education.
On July 13, 1987, Tafoya successfully completed a legal training course approved by the NNBA. The next day, July 14, Tafoya was notified by Norman Cadman, then Vice President of the NNBA, that his application had been provisionally approved and he would be allowed to sit for the Navajo Nation Bar Examination. Tafoya was notified on September 8, 1987 that he had passed the bar examination, and was sworn in by this Court on September 11, 1987.
After practicing law for approximately two months, Tafoya received a letter from Donna Chavez, successor Vice President of the NNBA, informing him that his membership in the NNBA and his license were revoked by the NNBA Admissions Committee. The letter apprised Tafoya of his right to appeal the decision to the Board of Bar Commissioners, which he did on December 9,1987.
*142On December 10, 1987, Albert Hale, then President of the NNBA, remanded Tafoya's case to the Admissions Committee for a hearing after finding that the letter of revocation had violated Tafoya's due process rights. A motion for a stay of execution, which Tafoya had filed, was also directed to the Admissions Committee for their consideration. The stay was granted.
On January 6, 1988, the Admissions Committee held a hearing in which Tafoya appeared and gave testimony. He was also allowed to present evidence and witnesses in his defense, although he chose not to do so. No brief was filed.
Tafoya's lack of state bar membership and legal education were never points of contention in the Admissions Committee hearing, and no allegation of fraud or misrepresentation was leveled against him. In fact, testimony from NNBA witnesses indicated that Norman Cadman was aware of Tafoya's lack of qualifications.
In its decision on remand, the Admissions Committee rejected Tafoya's argument in equity and affirmed the revocation determination. Tafoya appealed to the NNBA Board of Bar Commissioners, which affirmed the Committee's decision of July 27, 1988. We now affirm.
Four issues are raised on appeal:
1. Whether the approval of Tafoya's NNBA application and licensing by the Navajo Supreme Court constitute actions which equitably estop the NNBA from raising Tafoya's lack of state bar membership as grounds for revocation.
2. Whether Tafoya was afforded due process of law in the NNBA revocation proceedings.
3. Whether Tafoya has been denied equal protection of the law.
4. Whether the NNBA Articles of Association, §§ 101-604, empower the NNBA Board of Bar Commissioners to conduct bar revocation proceedings.
II
Before reaching the merits of the case, a procedural point raised by the NNBA must first be addressed. The NNBA argues that Tafoya is raising the estoppel argument for the first time before this Court. The NNBA asks that Tafoya be precluded from invoking equitable estoppel on appeal because he did not argue that principle at any time during the NNBA proceedings.
The NNBA is correct that equitable estoppel was not affirmatively pleaded before the Admissions Committee. In administrative proceedings, however, parties will not be held to strict rules of pleading, but the theories relied upon must be evident from a reading of the record.
The Admissions Committee itself recognized that Tafoya's appeal was equitable in nature. While Tafoya did not label it estoppel, he testified to the large *143financial obligations he had assumed due to his admission to the bar, obligations he never would have undertaken absent NNBA membership.
This testimony is clear in the record below and acknowledged in the Committee's decision. Although equitable estoppel was not specifically pleaded below, the overall record shows that Tafoya relied upon the principle. Tafoya is therefore not precluded from arguing equitable estoppel before this Court.
Ill
The NNBA rules governing admissions are quite explicit. Section III (B) (3) of the By-Laws establishes two categories of applicants: those who are state bar members and those who are not state bar members. Different standards apply to the two categories. This bifurcated admissions structure is not arbitrary or capricious, but rather designed to improve the Navajo court system and enhance the quality of the Navajo Bar. As members of the tribe, Navajo advocates are familiar with the customs and traditions of their people. They can speak the tribal language, thereby communicating with those seeking legal help who rely upon their native tongue. An understanding of the Navajo life-style and culture is indispensable to the practice of law within the Navajo Nation, and Navajo advocates advance the development of a modern judicial system which retains traditional legal norms.
The NNBA has also realized, however, that a formal legal education serves as a catalyst in the process of Navajo legal evolution. Trained attorneys serve an important function: they elevate the level of trial and appellate practice by introducing new legal concepts and techniques into the legal community. Furthermore, law school uniquely trains an attorney to appreciate different legal values within an analytical framework. Although an outsider, a non-Navajo attorney is trained to study and deciper Navajo law in a manner few layman could emulate. The non-Navajo attorney is therefore crucial to the jurisprudential development of Navajo society.
Tafoya fits neither category. In Navajo tradition, an advocate spoke for the person accused, as a sort of character witness, with knowledge of the man, his family, and his upbringing. The Navajo advocate knows Navajo life-style, culture, clan relationships and the language. Tafoya does not possess this knowledge. At the same time, he is unable to perform as a non-Navajo attorney, because he lacks a formal legal education and he is not a state bar member. While, he successfully completed a legal training course approved by the NNBA, the course is not the equivalent of law school. Law school provides an individual with an arsenal of analytical skills which no six-week course could offer. Due to his failure to satisfy one of the categories under Section III (B)(3) of the ByLaws, Tafoya is patently unqualified for membership in the NNBA.
*144IV
Tafoya argues that although he failed to meet the criterion of section III (B) (3), the requirements were waived in his case. Tafoya argues that the NNBA is equitably estopped from revoking his membership because his application was approved by the NNBA, he took and passed the bar examination, and was ultimately sworn in by this Court.
The rules for membership in the NNBA may be waived for non-Indians in certain circumstances. See In re: Elkins, 4 Nav. R. 63, 64 (1983); In re: Practice of Law, 4 Nav. R. 75, 76 (1983). In these cases, however, the non-Indian attorney was a state bar member who was hired by the Navajo Department of Justice. She was granted associate status prior to taking the bar examination because she was needed by the tribe to present pressing issues in Navajo courts. Although she had not yet passed the Navajo Nation Bar Examination, Elkins was an attorney filling a needed role. Tafoya, however, is not a law school graduate and is not an attorney for the Navajo Department of Justice. His case, therefore, is quite different.
The question, though, is not whether section III (B) (3) can be waived, but rather who is authorized to make such a decision. This Court is ultimately responsible for all admissions to the bar, and is vested with the authority to waive NNBA rules. We have, however, delegated certain responsibilities to the Board of Bar Commissioners. NNBA Articles of Association, §§ 101-604.
It is clear, however, that Norman Cadman lacked the authority to issue a waiver on his own. Nowhere in the By-Laws is such a power delegated to the Vice President. Although he was entrusted with the responsibility of enforcing admissions criteria, he was not empowered to flout them. The NNBA is free to enforce their guidelines. The NNBA is not bound by the unauthorized acts of its agents. While an administrative agency like the NNBA may be faulted for “failure to police the actions of its own personnel, [it] as a whole cannot be held accountable for, nor required to perpetuate the ... unauthorized practice....” Huntway Refining Co. v. United States Dept. of Energy, 586 F. Supp. 569, 573 (C.D. Cal. 1984). Cadman's action in admitting Tafoya was unauthorized. That being the case, the NNBA is not prevented from repudiating that act and enforcing the rule.
V
Tafoya also argues that the revocation proceedings violated his due process rights. It is true that the Admissions Committee initially revoked Tafoya's membership without notice. The Committee's decision, however, was subsequently vacated and remanded for a full hearing. All evidence from the record below indicates that Tafoya, on remand, was given an opportunity to present a defense, including witnesses and evidence if he so chose. Referring Chavez's letter back to the Admissions Committee effectively negated previous error in favor of a de *145novo adjudication on the issue remanded. The record from the hearing on remand shows that Tafoya was given due process.
VI
Tafoya draws a parallel between himself and William Battles in In re: Practice of Law of Battles, 3 Nav. R. 92 (1982), where Battles, a non-Indian, was allowed to maintain his NNBA membership. If Battles was now applying for admission he would not meet the qualifications established by the NNBA. The Battles case, however, is distinguishable. There, Battles became a member of the NNBA in 1976, which was prior to adoption of the rule (section HI (B)(3)) which required non-Indians to be members of a state bar. Battles met all the qualifications for membership on the day he was admitted to the bar, while Tafoya was never eligible according to the admissions criterion. By allowing Battles to continue to practice before the Navajo courts, this Court simply refused to retroactively enforce a new rule. Here, the rule was in effect even before Tafoya took the bar examination.
VII
Tafoya also argues that the NNBA lacks the authority to conduct bar membership and license revocation proceedings because this function has not been explicitly delegated by the Supreme Court. In fact, the Bar Association not only has been delegated the power but also the responsibility to conduct such proceedings.
Section 203 of the NNBA Articles of Association empowers the NNBA to “promulgate and enforce any and all appropriate rules and regulations, including ethical standards.” NNBA Articles of Association, § 203 (emphasis added). This section makes it clear that ethical violations are not all-inclusive. Other considerations are implicit, as indicated by the phrasing “all appropriate rules."
Furthermore, the fact that this Court is the ultimate authority on bar membership does not mean that the Bar Association lacks power to conduct revocation hearings. This Court has previously determined that “while the bar association screens ... the ultimate responsibility and authority for the admission and non-admission of an individual... is that of the courts. Occasionally, situations will arise in which an individual does not meet the standards fixed by the bar, and [those] individuals cannot be barred from directly petitioning the courts for admission.” In re: Practice of Law, 4 Nav. R. 75, 76 (1983) (emphasis added).
Tafoya has not been denied his right to appeal to this Court. At the same time, however, this Court lacks the time and resources to hear each case de novo. Judicial economy demands that the fact finding begin at a lower level. The practice has been to remand bar proceedings which were improperly filed with this Court to the NNBA for screening. See order in In re: Practice of Law of Stuhff, 1 Nav. R. 267 (1978).
*146While the NNBA does possess the power to conduct revocation proceedings, only the Navajo Supreme Court has the ultimate power to revoke a practitioner's license and membership in the NNBA. Generally, this Court is also the ultimate arbiter of Bar Association membership. The administrative determination made by the NNBA is reviewable by this Court. When an appeal is taken, the NNBA's function is to preserve testimony for this Court's later review. Of course, if no appeal is filed within the time allowed, the NNBA decision becomes final. Revocation of bar membership constructively denies an attorney of his practice. Therefore, only this Court ultimately can deprive an individual of full NNBA membership.
VIII
Tafoya's appeal has been based on equitable considerations from the outset. Under these circumstances, the equities of the respective parties must be balanced. American Savings v. Bell, 562 F. Supp. 4 (D.D.C. 1981). While Tafoya has an interest in maintaining his privilege to practice law, the NNBA has a far stronger interest in excluding Tafoya from membership. An individual unqualified to practice before the Navajo courts has been allowed to hang up his shingle through an unauthorized act of an NNBA official. Nothing less than the integrity of the bar is at stake.
Finally, there is the public's interest in the availability of competent and ethical legal counsel. The NNBA has a fiduciary obligation to the residents of the Navajo Nation, a responsibility it cannot abdicate. The impact Tafoya's practice will have on the public must be considered, because its interest is always paramount. An attorney is engaged in a highly specialized profession in which he is entrusted with the livelihood of a client. This Court has an obligation to the public to ensure that those certified to practice law within the Navajo Nation have met the standards for admission. Given the facts of this case, we have no choice but to conclude that Tafoya does not meet the standards necessary for admission to the NNBA.
Tafoya had a responsibility to determine what the standards for practice were before the Navajo courts. Emery Mining Corp. v. Secretary of Labor, 744 F.2d 1411, 1416 (10th Cir. 1984). Every state in the Union requires a law degree for practice before their courts, and such a fundamental assumption cannot be wished away or ignored. It is not unreasonable to expect one in Tafoya's position to malee a basic inquiry into his eligibility to practice law. Tafoya was admitted to the practice of law in the courts of the Navajo Nation due to an unauthorized waiver of an NNBA regulation. We affirm the decision of the Board of Bar Commissioners. | 01-04-2023 | 11-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8502875/ | OPINION
Opinion delivered by
AUSTIN, Associate Justice.
This case comes before the Court on a petition for a writ of prohibition to the Tuba City District Court. The issue is whether the Tuba City District Court has civil jurisdiction over an action arising within the Moencopi Administrative Unit. We hold that the Navajo Nation court has jurisdiction and deny the petition.
I
Respondents/plaintiffs, Joe Sloan and Vera George, are enrolled members of the Navajo Tribe. Respondents sued applicants/defendants, who are all officers of the Hopi Department of Range and Livestock, in the Tuba City District Court of the Navajo Nation for conversion of sixteen head of goats. The goats were allegedly trespassing on lands of residents of the Village of Moencopi located within the Moencopi Administrative Unit. The applicants seized the goats on July 24,1987 and they transported the goats to the Village of Oraibi on the Hopi Reservation.
The Moencopi Administrative Unit and its counterpart, the Tuba City Administrative Unit, are adjoining parcels included in land called the “Bennett Freeze” area within the 1934 Act Reservation. Congress passed the 1934 Act to define the exterior boundaries of the Navajo Reservation in Arizona. The 1934 Act essentially set aside a reservation “for the benefit of the Navajo and such other Indians as may already be located thereon.” Act of June 14, 1934, 48 Stat. 960. Litigation pending in the federal court will determine the extent of the *148Navajo and Hopi Tribes’ interests in the 1934 Act Reservation. Sidney v. MacDonald, No. 74-842 PHX EHC (D. Ariz.).
In 1966, Robert L. Bennett, Commissioner of Indian Affairs, imposed a construction freeze (Bennett Freeze) within the 1934 Act Reservation in recognition of an unidentified Hopi interest in the 1934 Act Reservation. The boundaries of the freeze area have since been modified. As a result of the freeze, mutual consent by the Navajo and Hopi Tribes is required before either tribe may affect land within the Bennett Freeze area. The two administrative units are excepted from the consent requirement. No Navajo consent is needed for the Hopis to affect land within the Moencopi Administrative Unit, except for well drilling, and the same is true for the Navajo Tribe in the Tuba City Administrative Unit.
Applicants moved to dismiss the suit arguing that no Navajo Nation court had jurisdiction over an action which arose within the Moencopi Administrative Unit. The district court found that the goats were seized within the Moencopi Administrative Unit, which was within the exterior boundaries of the Navajo Reservation, and ruled that the Moencopi Administrative Unit was within the jurisdiction of the Tuba City District Court.
Applicants then petitioned this Court to issue a writ of prohibition to the Tuba City District Court, prohibiting that court from proceeding to determine the merits of Sloan v. Taylor, No. TC-CV-317-87, and ordering that court to dismiss the action for lack of jurisdiction. We granted an alternative writ of prohibition and ordered respondents to show good cause why the writ should not be made permanent.
II
We initially consider respondents’ argument that the petition should be denied at the outset because the applicants have a remedy by appeal. In McCabe v. Walters, 5 Nav. R. 43, 47 (1985), this Court said: “A Writ of Prohibition is a discretionary writ and is appropriately issued where the trial court is proceeding without or in excess of its jurisdiction ... and Petitioner has no plain, speedy and adequate remedy at law.” (citation omitted). In rare cases, this Court may decide the jurisdictional issue on a petition for a writ of prohibition despite the apparent availability of a plain, speedy and adequate remedy at law. See Yellowhorse, Inc. v. Window Rock District Court, 5 Nav. R. 85, 86 (1986). To invoke this exception, the applicant must show the unique nature of the case and the extraordinary circumstances under which it is brought.
The issue of conflicting tribal jurisdiction within the boundaries of the same reservation presents a unique and difficult question of law and equity. The district court had no guidance and the issue is one of first impression in the Navajo courts. The jurisdictional uncertainty brought on by federal action in the Moencopi Administrative Unit currently plagues the Navajo and Hopi Tribes, the Navajo and Hopi courts, and the citizens of the area. This uncertainty may fur*149ther contribute to tension in the area. The case is unique and extraordinary circumstances are present to justify deciding the jurisdictional issue presented by the applicants.
III
A
Tribal civil jurisdiction is derived from a tribe's retained inherent sovereignty. Deal v. Blatchford, 3 Nav. R. 158 (1982). The Navajo Nation's declaration of civil jurisdiction is found in 7 N.T.C. § 253(2) (1985). That section gives the Navajo Nation district courts original jurisdiction over: “All civil actions in which the defendant... has caused an action to occur within the territorial jurisdiction of the Navajo Nation."
The Navajo courts have civil jurisdiction over all persons who cause an action to occur in Navajo Indian Country. Window Rock Mall v. Day IV, 3 Nav. R. 58, 59 (1981); Deal v. Blatchford, 3 Nav. R. 159 (1982); Billie v. Abbott, 6 Nav. R. 66 (1988). Navajo Indian Country is “defined as all land within the exterior boundaries of the Navajo Reservation....” 7 N.T.C. § 254 (1985). Navajo Indian Country makes up the Navajo courts’ territorial jurisdiction.
Respondents argue that if the situs of the alleged incident is within the exteri- or boundaries of the Navajo Indian Reservation, Navajo Nation courts can exercise general civil jurisdiction. Applicants counter by arguing that the implication of respondents’ argument is that Navajo Indian Country would also include lands within the 1882 Executive Order Reservation in which the Hopi Tribe holds exclusive interest, simply because they lie within the exterior boundaries of the Navajo Indian Reservation.
Applicants’ argument is meritless. The legislative history of the Navajo Nation’s territorial jurisdiction statute shows that the Navajo Nation disclaimed jurisdiction over land the Hopi Tribe held in exclusive interest. While the Navajo Tribal Council reviewed the Navajo Nation's territorial jurisdiction statute, it was advised that the statute is not “intended to assert Navajo jurisdiction over the lands of the Hopi Indian Reservation insofar as to do so would be inconsistent with federal laws.” Navajo Tribal Council Res. CJY-57-85, Exhibit A, passed July 25, 1985 (prepared remarks of attorney Elizabeth Bernstein). However, reading 7 N.T.C. § 254 as including the Moencopi Administrative Unit within its definition of Navajo Indian Country is not inconsistent with federal law. The Moencopi Administrative Unit lies within the exterior boundaries of the Navajo Indian Reservation and it has yet to be decided that the Hopi Tribe holds an exclusive interest in the lands.
*150B
Applicants concede there has been no determination of an exclusive Hopi interest in the lands within the Moencopi Administrative Unit and that the district court was correct in concluding that Congress has not established a permanent Hopi reservation within the Moencopi Administrative Unit. Applicants argue, however, that the district court erred in failing to recognize that Congress has established a temporary exclusive Hopi reservation within the Moencopi Administrative Unit pending final judgment in Sidney v. MacDonald, No. 74-842 PHX EHC. A congressional intent to set aside the Moencopi Administrative Unit as a temporary exclusive Hopi reservation, within the exterior boundaries of the Navajo Reservation, would have been expressed in the statutes dealing with the Navajo and Hopi land dispute: the Act of June 14, 1934, 48 Stat. 960. ("1934 Act"), the Act of December 22, 1974, 88 Stat. 1712, 25 U.S.C. §§ 640d et seq. (1982) (“1974 Settlement Act”), or Section (3) of the Navajo-Hopi Relocation Amendments Act of 1980, 94 Stat. 929, 25 U.S.C. § 640d-9(f) (1982) ("1980 Amendments Act"). None of these statutes support such a conclusion.
By the Navajo Treaty of 1868, 15 Stat. 667, the United States granted the Navajos a reservation in the northeast corner of Arizona. This reservation was gradually expanded. The lands at issue here were withdrawn by executive order in 1900. Exec. Order of January 8, 1900. These lands, together with other executive order withdrawals from 1880 to 1918, became known as the Navajo Reservation. See, Sekaquaptewa v. MacDonald, 619 F.2d 801 (9th Cir. 1980). The “1934 Act” defined the exterior boundaries of the Navajo Reservation in Arizona. The Act provided that the lands were permanently withdrawn, “for the benefit of the Navajo and such other Indians as may already be located thereon."
Congress did not identify Navajo-Hopi boundaries in the “1934 Act.” The Hopis would not agree to boundaries proposed by the administration, and Congress was unwilling to force the issue. The Hopis lobbied to protect what they thought was theirs. This resulted in the exemption of the 1882 Reservation from the “1934 Act” and the such other Indian language.
Id. at 807 (emphasis added). Congress, in the 1934 Act, did not disturb then-existing land tenure patterns, but left it up to the two tribes to come to an amicable solution or until further congressional action was taken.
The tribes were unable to work out cooperative arrangements and in 1974 Congress authorized both tribes to sue in the federal district court, “for the purpose of determining the rights and interests of the tribes in and to such lands [covered by the “1934 Act"] and quieting title thereto in the tribes.” 25 U.S.C. § 640d-7(a).
The Hopi Tribe brought suit pursuant to this section in the United States District Court for Arizona. The federal district court concluded that the Navajos had an undivided one-half interest in lands occupied by the Hopi in 1934, and exclusive trust title in all other 1934 Act Reservation lands. See, Sekaquaptewa v. *151MacDonald, 448 F. Supp. 1183 (D. Ariz. 1978), aff'd in part and rev'd in part, 619 F.2d 801 (9th Cir. 1980). The Ninth Circuit reversed in part, holding Hopi interests exclusive in land they actually and exclusively “possessed, occupied, or used” in 1934. See id. The case was remanded to determine what land the Hopis “possessed, occupied, or used” in 1934. That determination is still pending. Sidney v. MacDonald, No. 74-842 PHX EHC. Significantly, the Ninth Circuit stated,
In doing so [remanding], we acknowledge the possibility that some reservation land, grazing land for instance, may have been used by both tribes in 1934. Even in villages it may not be possible for the court to conclude that the Hopis “possessed, occupied, or used” such land exclusively. In that event it may be proper on remand for the district court to declare title to be joint or undivided, subject to partition.
619 F.2d at 809.
This Court acknowledges the United States District Court's determination that the Hopi Tribe has a present equitable interest in, as yet undefined, lands within the exterior boundaries of the 1934 Navajo Reservation. See Sekaquapetewa v. MacDonald, 448 F. Supp. at 1193. We also note that the federal district court took judicial notice of the fact a Hopi village existed at Moencopi on June 14, 1934. Id. It does not follow, however, that a Hopi reservation, temporary or otherwise, exists within the Moencopi Administrative Unit and consequently that the Hopis have exclusive jurisdiction in the area. Quite the contrary. The possibility exists that the Hopis have no exclusive interest in any part of the 1934 Act Reservation. The Hopis do not presently have exclusive jurisdiction over the Moencopi Administrative Unit. The nature and extent of Hopi interest within the boundaries of the Navajo Reservation as defined in the “1934 Act” lacks concrete form and cannot serve as a basis for the applicants’ claim of exclusive Hopi jurisdiction.
What the “status quo” was in 1934 is still subject to determination. What is clear is that the allocation of land to respective tribes upon determination of interests is prescribed in 25 U.S.C. § 640d-7(b). It states in pertinent part:
Lands, if any, in which the Navajo Tribe ... are determined ... to have the exclusive interest shall continue to be a part of the Navajo Reservation. Lands, if any, in which the Hopi Tribe... are determined... to have the exclusive interest shall thereafter be a reservation for the Hopi Tribe. Any lands in which the Navajo and Hopi Tribes ... are determined to have a joint or undivided interest shall be partitioned ... and the area so partitioned shall be retained in the Navajo Reservation or added to the Hopi Reservation, respectively.
The subsection of the “1974 Settlement Act” quoted above uses only prospective language in discussing the Hopi Tribe's claims. There is no evidence Congress understood any of the Navajo Reservation to already be exclusive Hopi territory. Rather, the prospective language of 25 U.S.C. § 640d-7(b) suggests that Congress viewed the lands within the boundaries of the “1934 Act” as Navajo Reservation until the United States District Court decided otherwise. See also, 25 *152U.S.C. § 640d-9(b) (lands to be held in trust for Hopi Tribe following determination and allocation).
In passing the “1974 Settlement Act” in the form it did, Congress declined an opportunity to define an area of exclusive jurisdiction around Moencopi village. Earlier drafts included a section 7 (later section 8) which detailed an area around Moencopi contiguous to the Hopi Reservation. See H. R. Rep. No. 93-909, 93d Cong., 2d Sess. 2 (1974). Any weight given to references, by applicants, to Senate and House reports is diminished by the fact that the bill that finally passed was substantially unlike the bill considered in those reports.
The “1974 Settlement Act” does not express a congressional intent to establish a temporary exclusive Hopi reservation within the Moencopi Administrative Unit. It therefore does not support the applicants’ claim of exclusive Hopi jurisdiction in the area.
Applicants’ assertion that the “1980 Amendments Act,” supports their claim of exclusive jurisdiction within the Moencopi Administrative Unit likewise fails. Applicants argue that 25 U.S.C. § 640d-9(f) supersedes 25 U.S.C. § 640d-7(b) and satisfies the requirement that only Congress can create a reservation. Applicants attempt to transform the inchoate Hopi equitable interest found in Sekaquaptewa v. MacDonald, 448 F. Supp. 1183, into creation of a Hopi reservation coinciding with the Moencopi Administrative Unit.
Section 640d-9(f) adopted earlier actions taken by then Commissioner of Indian Affairs, Robert L. Bennett, in part to protect alleged Hopi interests in natural resource development in the area that is known as the “Bennett Freeze” area. The “Bennett Freeze” ended unilateral Navajo development within that portion of the reservation. This action was later modified by the Assistant Secretary of the Interior, Harrison Loesch, to return sole control to the Navajo Nation within the area designated as the Tuba City Administrative Unit and to give the Hopi Tribe the exclusive right to administer development within the area designated as the Moencopi Administrative Unit. A Hopi reservation cannot, therefore, be implied from Congress’ specific narrow grant of control over development in the Moencopi Administrative Unit.
Applicants urge that judicial, legislative and executive powers are generally coextensive. Nonetheless, a distinction is made in the field of Indian law between governmental power to tax or regulate and the power to adjudicate. Public Law 280, for example, while giving certain states power to adjudicate civil controversies arising in Indian Country, does not permit those states to exercise their full powers of taxation or regulation there. See, e.g., Bryan v. Itasca County, 426 U.S. 373 (1976); California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987). Even when Public Law 280 does not apply, the United States Supreme Court tends to treat the issues of taxation and regulation somewhat differently than adjudicatory jurisdiction. Cf., Williams v. Lee, 358 U.S. 217 (1959); McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164 (1973).
Applicants contend that although 25 U.S.C. § 640d-9(f) only addresses devel*153opment, it does not defeat their claim of exclusive jurisdiction. They argue that it would be inconsistent on the one hand for Congress to acknowledge the right to exclusively control development and on the other to intend that the Navajo Nation's jurisdiction over the Moencopi Administrative Unit to be otherwise unlimited. The narrow issue before this Court is judicial jurisdiction. Applicants’ apprehension that a holding of Navajo jurisdiction could result in Navajo regulatory authority over the area frustrating Congress’ grant of control over development to the Hopi Tribe is unconvincing. Applicants equate judicial jurisdiction with the right to govern; respondents do not. No evidence was presented which suggests the Navajo Nation has ever asserted a right to govern the Village of Moencopi. This Court's holding today is not intended as such an assertion.
The control over development within the Moencopi Administrative Unit, granted to the Hopi Tribe by Congress, is analogous to the administrative power of a municipality. The United states Supreme Court has stated, “[njeither the United States, nor a state, nor any other sovereign loses the power to govern the people within its borders by the existence of towns or cities therein endowed with the usual powers of municipalities....” Merrion v. Jicarilla Apache Tribe, 445 U.S. 130 (1982) (quoting Buster v. Wright, 135 F. 947, 952 (8th Cir. 1905), appeal dism'd, 203 U.S. 599 (1906)).
Congress, by enacting 25 U.S.C. § 640d-9(f), expressed no intent to establish a temporary exclusive Hopi reservation within the Moencopi Administrative Unit, nor to divest the Navajo Nation courts of civil adjudicatory jurisdiction over causes of action arising within that same area.
No “magic words” are necessary to establish a reservation. But congressional intent, if not express, must be implied by the language and purpose of the legislation. It takes an unacceptable leap of logic to read 25 U.S.C. § 640d-9(f) as creating a temporary exclusive Hopi reservation within the Moencopi Administrative Unit. The language expresses an interim grant of administrative control over the area, the purpose of which is to facilitate development in the area.
Applicants suggest that Congress exercised restraint in wording section 640d-9(f) so as not to infringe on the authority delegated to the United States District Court. But, given this delegation of authority, it is unlikely that Congress would subsequently create a Hopi reservation within the Moencopi Administrative Unit and not inform the federal court it was doing so and that its authority was being modified. The “1980 Amendments Act” in no way rescinds or modifies that authority.
C
Applicants argue that the Secretary of Interior has granted exclusive jurisdiction to the Hopis through his power to mediate the conflicting claims by the Hopi Tribe and the Navajo Nation. It may be that the Secretary has authority to promulgate regulations pursuant to the federal government's trust responsibility to the tribes. See 25 U.S.C. §§ 2 and 9. But, as the court pointed out in Northern *154Arapahoe Tribe v. Hodel, 808 F.2d 741 (10th Cir. 1987), federal executive officials are limited to the authority conferred on them by Congress. “The rulemaking power granted to an administrative agency ... is not the power to make law. Rather, it is the power to adopt regulations to carry into effect the will of Congress....” Id. at 748.
In 1918, Congress assumed exclusive authority to add to or create reservations in Arizona. Act of May 25, 1918, 40 Stat. 570, 25 U.S.C. § 211. Absent a specific authorization by Congress, the Secretary of Interior cannot establish a reservation. (25 U.S.C. § 467 provides exceptions to this rule and applies to limited situations not present here.) There is no applicable statute authorizing the Secretary to establish a Hopi reservation within the exterior boundaries of Navajo Indian Country as defined by the “1934 Act,” nor to mediate conflicting claims of jurisdiction by the Navajo Nation and Hopi Tribe. The actions of the Secretary of Interior in delineating boundaries for purposes of control over development cannot rise to the level of creating a reservation within the Moencopi Administrative Unit even assuming, arquendo, that the Secretary has the authority.
The results in Healing v. Jones, 210 F. Supp. 125 (D. Ariz. 1978), aff'd 373 U.S. 758 (1963), do not alter this result. The Healing court held that 25 U.S.C. § 211 did not terminate the Secretary of Interior's powers to settle Indians on the 1882 Executive Order Reservation as he saw fit. The decision has no bearing on the present situation, however, because the language creating the 1882 Executive Order Reservation and “1934 Act” Reservation is so different. The former specifically grants authority to the Secretary of Interior; reference to the Secretary’s power is entirely missing in the latter.
Applicants seek to bolster their position that the Secretary of Interior granted exclusive jurisdiction to the Hopis by arguing that the Secretary's approval of the Hopi Constitution and subsequent Hopi ordinances, which cover the Village of Moencopi, expresses the Department of Interior's position that the Village of Moencopi is part of the Hopi Reservation. Federal courts do give the Secretary of Interior great deference in managing Indian affairs, see, California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), but the law remains that a tribe in Arizona has no power to add to its reservation simply by claiming an area and subsequently seeking and receiving Secretarial approval of that claim. That power rests exclusively with Congress. 25 U.S.C. § 211.
D
Lastly, applicants argue that exclusive jurisdiction is an inherent power the Hopis exercise as a sovereign nation in the Moencopi Administrative Unit. The Indian Claims Commission, in an action brought by the Hopi Tribe against the United States, held that Hopi aboriginal title to all lands outside the 1882 Reservation was extinguished when the Executive Order of December 16, 1882 was issued. Sekaquaptewa v. MacDonald, 448 F. Supp. at 1188. Consequently, any inherent authority the Hopi Tribe may have had ended with respect to lands *155outside the 1882 Hopi Reservation.
Arguably the Hopis may have regained some measure of authority by virtue of their equitable interest in lands within the exterior boundaries of the 1934 Navajo Reservation. But a present equitable interest, in as yet undefined lands, does not support a claim of exclusive jurisdiction over those lands. Recognized title and consequent exclusive jurisdiction, if any, will follow from the federal court's final determination in Sidney v. MacDonald, No. 74-842 PHX EHC.
The results in Healing v. Jones, 210 F. Supp. 125, are instructive. Although Healing recognized the Navajo Nation's interest in the 1882 Executive Order Reservation as Indians the Secretary had seen fit to settle thereon, tribal jurisdiction over the area did not follow until almost twenty years later, when Congress enacted 25 U.S.C. § 640d-9(e) (1) (B). This section gave “each tribe [Navajo or Hopi] jurisdiction and authority over any lands partitioned to it and all persons located thereon.” Id. The Navajo Nation retains jurisdiction over lands within its exterior reservation boundaries until such time as it is specifically divested of such jurisdiction by Congress.
IV
Applicants have not established that Congress has created a temporary exclusive Hopi Reservation within the Moencopi Administrative Unit. Thus, their claim of exclusive jurisdiction over that area fails. Nor have they shown that the Navajo Nation courts have been divested of their jurisdiction over civil actions which occur within the Moencopi Administrative Unit. However, because the Hopi Tribe does have an equitable, but undefined, interest in lands defined in the “1934 Act,” and Moencopi is inhabited predominately by Hopis, this Court holds as a matter of comity and of mutual respect that both tribes have concurrent jurisdiction over the Moencopi Administrative Unit for the time being.
The peoples of the Navajo Nation and of the Hopi Tribe share a history of mutual respect. The Navajos and Hopis have long lived side by side, using the same lands, trading with one another, and intermarrying. This commingling formed lasting bonds of friendship between the two peoples. In practice, the Hopis of Moencopi Village have used the Tuba City District Court to adjudicate their civil disputes. The Hopis from this Village also use the Hopi courts located on the Hopi Reservation. The idea of concurrent jurisdiction is, therefore, not new to the Moencopi Administrative Unit. Concurrent jurisdiction is imbedded in past practice. The Tuba City District Court has jurisdiction to determine the merits of Sloan v. Taylor, No. TC-CV-317-87.
This holding applies only to the narrow issue of judicial jurisdiction and only to that area known as the Moencopi Administrative Unit. Nothing in this opinion shall be deemed to be a determination of the merits of conflicting claims to the lands that are the subject of litigation in Sidney v. MacDonald, No. 74-842 PHX EHC.
The petition for writ of prohibition is denied. | 01-04-2023 | 11-23-2022 |
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