NNBA Feb 2024 Bar Review (3 Slides) PDF

2/8/2024 FOUR- DIRECTION APPROACH By Robert Yazzie and Shawn Attakai February 2024 1 YA’AT’EEH 2 ROADMAP...

2/8/2024 FOUR- DIRECTION APPROACH By Robert Yazzie and Shawn Attakai February 2024 1 YA’AT’EEH 2 ROADMAP PART I - Background of 4D (1/2 hour) Role of the Nat’aanii-Advocate Basis of 4D K’eh Defined Why FLD? What is FLD? PART II - How to use 4D (1 ½ hours) Examples 3 1  2/8/2024 PART I BACKGROUND OF 4D (1/2 HR) 4 ROLE OF NAT’AAHNII-ADVOCATE 5 Leaders search for a solution Nat’áanii’s duty – To always work and seek a solution for the people, especially when the Anahoot’i’ concerns ones daily livelihood and requires a harmonious resolution. Austin Bahe v. NNLC, SC-CV-15- 18. (June 29, 2018). -work for people Hard worker – Naanish – -always seeks a Work for an on behalf of the people – solution Problem solver -hard worker -problem solver 6 2  2/8/2024 Role of Nat’aahnii Role of Nat’aanii and Beehaz’aanii The traditional role of the courts in resolving disputes is to bring finality to the issues before us, correct the imbalances, and bring all parties back to Hozho. Tao bee Hozho nahoodleel Office of the NN President vs. NN Council, 9 Nav. R. 325, 336-337 (2010) Hoochxo’, Hozho, K’eh, Nayee’, Ak’ei Anahoot’i’ 7 BRING BACK PARTIES TO HOZHO Role of Nat’aanii? To bring all parties back to Hozho To transform Hochxo’ to Hozho How? With Beehaz’aanii 8 ROLE OF NAT’AANII - ADVOCATE HOCHXO’/ DINE ANAHOOT’I’’ BIBEEHAZ’AANII (Problems) Theft Fundamental Laws DV Racism K’eh T’aahwoh’ajit’eh 4D 9 3  2/8/2024 ROLE OF NAT’AANII - ADVOCATE HOZHO DINE (Harmony) BIBEEHAZ’AANII Iina K’eh Fundamental Laws Compassion K’eh T’aahwoh’ajit’eh 4D 10 ALCH’I’ SILA Nat’aanii solves the Anahoot’i’ (problem) by finding the solution using Beehaz’aanii (FLD) Procedure – 4D Substantive – FLD Principles (K’eh, etc.) Anahoot’i’ Beehaz’aanii 11 BASIS OF 4D 12 4  2/8/2024 OFFICE OF THE NN PRESIDENT VS. NN COUNCIL, 9 NAV. R. 325, 336-337 (2010) The story of NNIS is in case law. Facts – Dispute about President Shirley’s referendum to reduce Council from 88 to 24. (Power dispute between the Legislative and Executive) Held – Court upheld Separation of Powers, and Checks and Balances Reasoning – FLD story about Ma’ii Tsoh, Doli, Nashdoi Tsoh, & Dahiitiihii. 13 NAHAT’A PRINCIPLE - NNIS Office of the NN President vs. NN Council, 9 Nav. R. 325, 336-337 (2010) Traditional leadership story 14 NNIS 15 5  2/8/2024 4D ELEMENTS Nitsahakees – to Na’alkaah think Anahoot’I’ Bik’iiya (research) (problem) (find) Nahat’a – to plan Beehaz’aanii Nidiilya (fundamental law) (adopt) Iina – to live Beeheelya (apply) Siihasin – stability Nahoot’a (plan) 16 K’EH DEFINED 17 K’E IS PREVAILING LAW Navajo common law is the first law of our courts and we will abide by it whenever possible. Therefore, we agree with Appellee that the Navajo way of k’e is the prevailing law to be applied. K’e recognizes “your relations to everything in the universe,” in the sense that Navajos have respect for others and for a decision made by the group. It is a deep feeling for responsibilities to others and the duty to live in harmony with them. It has to do with the importance of relationships to foster consensus and healing. It is a deeply felt emotion which is learned from childhood. To maintain good relations and respect one another, Navajos must abide by this principle of k’e. Office of the NN President vs. NN Council, 9 Nav. R. 325 (2010) 18 6  2/8/2024 WHAT IS “K’EH”? K’e – includes equality and respect and leads to consensual solution. Rough Rock Community School v. Navajo Nation, 7 Nav. R. 313 (1998). K’e contemplates one’s unique, reciprocal relationships to the community and the universe. It promotes respect, solidarity, compassion, and cooperation so that people may live in hozho, or harmony. K’e stresses duties and obligations of individual relatives to their community. Atcitty v. Dist. Ct. for the Judicial Dist. Of Window Rock, 7 Nav. R. 227 (1996). -K’eh -sharing -caring -equality (due process) 19 WHY FLD? 20 RULE 1.1 “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation” 21 7  2/8/2024 THOMAS A. BISCUP V. KAYENTA DISTRICT COURT, NO. SC-CV-19-19 (2019) (DISSENT) "The NNBA is the organization charged with the pre-admission of the legal practitioners. However, the specific process through which out of state attorneys who apply for pro hac vice status has been laxed and unclear. The current pro hac vice admission process circumvents the most crucial feature of the regular admissions process which requires an understanding of Dine bii Beenahaz'aanii. Competency in the foundation of Dine Law and our problem-solving approach in the four sacred directions separates our legal system from other jurisdictions. By allowing attorneys to appear under a pro hac vice status, then later openly profess that they lack knowledge of our fundamental law—we do the Nation and the People a disservice. See, In re Practice of Law by Avalos, 6 Nay. R. 191, 193 (Nay. Sup. Ct. 1990) (finding that an understanding of Navajo lifestyle and culture is indispensable to the practice of law within the Navajo Nation." 22 CHOICE OF LAW STATUTE Our choice of law statute at 7 N.N.C. §204 requires us to "utilize Dine bi beenahaz 'etanii (Navajo Traditional, Customary, Natural or Common Law) to guide the interpretation of Navajo Nation statutory laws and regulations.“ Office of the NN President vs. NN Council, 9 Nav. R. 325 (2010) 23 WHAT IS FLD? 24 8  2/8/2024 SACRED COVENANT 25 4 LAWS 26 RELATIONSHIP WITH HOLY PEOPLE §203. Diyin Bitsąądęę Beenahaz'áanii Dine traditional law §204. Diyin Dine’é Bitsąądęę Beenahaz'áanii Dine customary law §205. Nahasdzáán dóó yádiłhił Bitsąądęę Beenahaz'áanii Dine natural law §206. Diyin Nohookáá Diné bi beenahaz'áanii Dine common law 27 9  2/8/2024 IMMUTABLE §203. Diyin Bitsąądęę Beenahaz'áanii Dine traditional law §204. Diyin Dine’é Bitsąądęę Beenahaz'áanii Dine customary law §205. Nahasdzáán dóó yádiłhił Bitsąądęę Beenahaz'áanii Dine natural law §206. Diyin Nohookáá Diné bi beenahaz'áanii Dine common law 28 ROLE OF FUNDAMENTAL LAW WHEREAS: 2. The dine have always been guided and protected by the immutable laws provided by the diyin, the diyin dine’e, nahasdzaan and yadilhil, These laws have not only provided sanctuary for the dine life way, but has guided, sustained, and protected the dine as they journeyed upon and off the sacred lands upon which they were placed since time immemorial. 29 It’s the stories & teachings Amicus Mr. Arthur states in his brief, "The Fundamental law represents the cumulative knowledge which has accrued to the Dine from the time of creation until the present. It represents the lessons which were learned as the People traveled through the underworlds and emerged into the glittering world as the bila 'ashdla 'ii. It includes the conflicts that took place before the emergence, and howthey were resolved, and conflicts that took place after the emergence, and how they were resolved. It includes what has transpired since the creation and the lessons taught to the People by the Diyin Dine. No single person knows all of the Fundamental Law but every single one of the Táá Dine knows some of it. Amicus Curiae Brief of Eddie J. Arthur, p. 18. Office of the NN President vs. NN Council, 9 Nav. R. 325 (June 2, 2010) 30 10  2/8/2024 Na’alkaah (Sources) The court notes that the more reliable works for use in finding Navajo common law are those authored by The Dine wise and experienced Navajo authors. are the most accurate commentators on themselves. In the Matter of the Estate of Boyd Apachee, 4 Nav. R. 178, 180-181 (W. R. Dist. Ct. 1983). 31 LEARNING THE LAW AMONG DINE We have heard that many of our non-Navajo practitioners rely solely on Navajo Nation Supreme Court opinions for an understanding of our Fundamental Laws and continue to be unfamiliar with our civilization in spite of sometimes decades of living in border towns near us and practicing in our courts. There is a saying that we have, that it is up to you to learn, T'aaho Ajit’eigo. Our culture is best known through interactions and experience, not through interpretations and secondary sources. We exhort those advising our government and those practicing in our courts to seek out knowledge by going among our Dine People and experiencing the Dine way of life first-hand. Office of the NN President vs. NN Council, 9 Nav. R. 325 (June 2, 2010) 32 PART II HOW TO USE 4D (SUBSTANTIVE FLD) (HYPOS) (1 1/2 HR) 33 11  2/8/2024 4 AREAS 34 K’EH 35 K’EH & DUE PROCESS 36 12  2/8/2024 HYPO Harry and Sally divorce. They submit to Peacemaking to distribute their assets, which Peacemaking does. Harry contests the Peacemaking decision which has been made into an order saying that Peacemaking violated his right to due process. 37 K’EH INCLUDES DUE PROCESS Benally vs. Benally Divorce case Party voluntarily accepted PM Attacked PM using Anglo-American law (DP) Divorce case. Assets divided through Peacemaking. Party argued “No due process” in Peacemaking. Held - PM affords due process Assimilation considered Used FLD - Role of K’eh in DP Described K’eh doctrine Held - K’eh satisfies DP argument 38 ROLE OF K’EH IN DUE PROCESS -k’eh -doone’e (k’ei) Benally vs. Benally (Kay. Dist. Ct. 2003) Peacemakers are experts of the fundamental law of k’e which is central to Navajo philosophy and law. Peacemakers emphasize k’e as the top value in their proceedings: Proceedings center around k’e. The law of k’e plays throughout Navajo society, even in the Judicial Branch of the Navajo Government. The Judges' Code of Conduct indicates, "A judge should behave to everybody as if they were his or her relatives." See Canon l, Section 3, Navajo Nation Judicial Code of Conduct (1991). Relatives are the epitome of k’e. Thus, even judges are subject to learn k’e. As experts of the k’e principle, peacemakers are legitimate, contrary to Mr. Patrick Benally's assertions 39 13  2/8/2024 Due process is fairness in the adversarial system. K'e incorporates fairness, but in the context of cooperation, sharing, and caring for each other. In caring for each other, a person treats each other fairly by giving equal treatment. Rather than favoring one person over another, all persons are treated equally under the k'e principle. 40 4D ANSWER Nistahakes (thinking) Nahat’a (problem solving) Anahoot’i’ (problem) – Does K’eh satisfy DP? Beehaz’aanii (law)– K’eh satisfies DP because “K'e incorporates fairness, but in the context of cooperation, sharing, and caring for each other”. Benally Beeheelya (apply) – Here, Harry’s argument will not work because K’eh includes fairness, thus DP was satisfied. Nahoot’a (conclude) – Yes, K’eh satisfies DP. Iina (execute) Siihasin (stability) 41 FAIRNESS & OPPORTUNITY TO RESPOND 42 14  2/8/2024 HYPO The DAPA petitioner wrote a letter to the judge without giving a copy to the respondent. 43 TRADITIONAL NOTICE “We are mindful that the concept of due process was not brought to the Navajo Nation by federal law or codified Navajo law for “the Navajo people have an established custom for notifying all involved parties in a controversy and allowing them, and even other interested parties, an opportunity to present and defend their positions.” Begay vs. Navajo Nation, 6 Nav. R. 20, 24 (Nav. Sup. Ct. 1988). 44 Nistahakes (thinking) 4D ANSWER Nahat’a (problem solving) Anahoot’i’ (problem) – Did the Petitioner violate Respondent’s right to fairness and opportunity to respond by not giving a copy of the Petitioner’s note to the the Respondent? Beehaz’aanii (law) – All parties in a case must be notified to allow them an opportunity to present and defend their positions. Begay Beeheelya (apply) – Here, the DAPA Petitioner did not give notice of his argument to the Repondent. Nahoot’a (conclude) – Yes, Petitioner violates Respondent’s right to fairness and opportunity to respond by not giving a copy of the Petitioner’s note to the the Respondent. Petitioner must give a copy of the note to Respondent. Iina (execute) Siihasin (stability) 45 15  2/8/2024 RIGHT TO A NAT’AANII (SPEAKER) 46 HYPO A DAPA petitioner accuses a respondent of shooting a gun at petitioner. DAPA allows pro se parties and speedy informal hearings. The respondent requests a continuance to obtain a lawyer. 47 RIGHT TO A NAT’AANII Earl Apachito v. Navajo Election Administration. SC- CV-32-17. (July 14, 2017) The person facing allegation has the right to have someone speak for him or her. Navajo Nation vs. Macdonald Sr., 6 Nav. R. 432, 436 (Nav. Sup. Ct. 1991) Navajo cultural standard is more strict than the ICRA standard. Goes to Due Process. 48 16  2/8/2024 Nistahakes (thinking) 4D ANSWER Nahat’a (problem solving) Anahoot’i’ (problem) – Does the respondent have a right to someone to speak for the minor child? Beehaz’aanii (law) – An accused has the right to have someone speak for him or her. Apachito Beeheelya (apply) – Here, the respondent is accused of shooting a weapon at the petitioner. Respondent requested a continuance to obtain a lawyer. The respondent has the right to have someone speak for him or her. Nahoot’a (conclude) – Yes, the respondent has a right to someone to speak for him or her. The Court must grant the respondent’s motion to continue to obtain a lawyer. Iina (execute) Siihasin (stability) 49 ABSENCE OF K’EH 50 HYPO While a survey crew was putting in survey stakes, Denise came up to the work site and started pulling out the stakes. Project Superintendent Pat asked her to stop pulling them out and she responded, “This is our land. You have no right to be here.” She pointed her finger at Pat and stated “you don’t know what you are doing. You don’t know what we are capable of. You will pay with your life. I am going to tell my grandfather and he will do away with you. He knows how to do those things… All of you guys are not going to live long. Pat comes to you for advice. 51 17  2/8/2024 HOSTEEN VS. TAPAHA (1997) “…THIS COURT TAKES JUDICIAL NOTICE THAT WITCHCRAFT EXISTS IN NAVAJO SOCIETY.” 52 Nistahakes (thinking) 4D ANSWER Nahat’a (problem solving) Anahoot’i’ (problem) – 1. Does the court recognize witchcraft? 2. What can the court do about witchcraft accusations? Beehaz’aanii (law) – The court takes judicial notice of the existence of witchcraft. Apachito. Under the DAPA, threats of witchcraft may fall under “other abuse”. If the court finds “abuse”, then the court may issue a protection order against the respondent to stay away from the petitioner. Beeheelya (apply) – The court will recognize Denise’s words as threats of witchcraft. The respondent will have to provide evidence at a hearing. Nahoot’a (conclude) – Yes, the court recognizes and takes the witchcraft accusation seriously. Pat may file a petition for a protection order under DAPA under “other abuse”. Iina (execute) Siihasin (stability) 53 NALYEEH- RESTORING INJURIES 54 18  2/8/2024 HYPO A tort petitioner accuses a respondent of shooting a gun at petitioner and causing injury (loss of a finger). A nearby security camera has the incident recorded. The petitioner’s family was very shaken. Under FLD, how should the respondent respond to restore harmony? 55 WHEN NALYEEH APPLIES Benally v. Navajo Nation, No. WR-CV-430-84 (Navajo 04/15/1986) Nalyeeh When a at fault will say, "I will give this for payment.“Navajo dies from the careless conduct of -Injury another, the person responsible for the death pays the immediate family - Responsible livestock and silver jewelry. party pays If a person dies in a wrongful death situation, the closer relative would be given -Value -money sheep to relieve that person from loneliness. How many sheep will be given -sheep varies depending upon what will fix the victim's mind. One -jewelry -No hard In other situations, where there is wrongful death, survivors get together and feeling discuss what compensation should be given to make up for the wrongdoing. When a settlement is reached among the survivors and the one at fault, payment may be Procedure -Meeting made by giving sheep, a belt, or even one strand of beads. Sometimes, -Discussion survivors may object and demand that more should be given. -Decision -Payment 56 Whatever property of value is given for the wrong doing, the paying back, "Nalyeeh " would make the person in sorrow get better, feel better, regain strength, and be able to go forth again in this life. Finally, the "Nalyeeh" (a paying back of restitution), seems to be used today mostly in connection with what would be considered civil matters, but in the past this symbolic restitution was usually all that would be required of the person who committed a criminal act, as well. Nalyeeh, traditionally, hasthe power to correct wrongs of any kind...The law of the People-Dine 'Bibee Haz'a' nii; Volumes I-IV, Ramah High School, Goal Ramah, New Mexico, 1972, Dan Vicenti, et al. -Well-being Defendants contend that the principle of Navajo torts does not result in an "intolerable (Hozho) burden upon all human activity" because the damages sought are not a direct Wrongs monetary repayment for the loss and all of its ramifications, but only token. Human loss -Civil (Torts) cannot be fully compensated for by money. -Criminal The continued importance placed upon the private symbolic renumeration of injured parties as a cornerstone of Navajo justice is a factor that cannot be ignored by -Payment - judges and law advocates symbolic 57 19  2/8/2024 Naalyeeh – owed to family, clan or person. In re Claim of Joe, No A-CV- 39-92. slip op at 7-8 (Nav. Sup. Ct. 1993). One who inflicts harm must pay the victim to restore harmony. Farley v. Kerr McGee, No. SR-CV-103-95, slip op at 7 (S.R. Dist. Ct. 1996). See also Nez v. Peabody Western Coal Co., Inc., No. SC-CV- 28-97, slip op. at 10, (Nav. Sup. Ct. 1999). It should be enough “so there are no hard feelings.”… If a person is hurt, he or she looks to clan relations for help. The tortfeasor and his or her relatives are expected to set things right in accordance with the hurt…. Nalyeeh depends on restitution, reparation, restoring harmony or replacing the loss or paying back. The manner and amount of payback are not so crucial. Benalli v. First Nat’l Ins. Co. of America, No. SC-CV-45-96, slip op. at 16-17 (Nav. Sup. Ct. 1998). See also Navajo Nation v. Blake, No. SC-CR-04-95, slip op. at 4-5 (Nav. Sup. Ct. 1996). 58 Nistahakes (thinking) 4D ANSWER Nahat’a (problem solving) Anahoot’i’ (problem) – 1. What should respondent do to restore harmony? 2. How much should the Nalyeeh be? Beehaz’aanii (law) – One who inflicts harm must pay the victim to restore harmony. Farley. Nalyeeh, traditionally, has the power to correct wrongs of any kind. Benally. It should be enough “so there are no hard feelings. Benalli. Beeheelya (apply) – Here, respondent should take responsibility for harm caused. The respondent should admit it, and offer Nalyeeh. The amount should be so there are no hard feelings. What is the value amount for loss of finger. Petitioner’s occupation may be a factor. An amount of $5000 may be enough so there is no hard feeling. Thus, respondent can offer that amount as Nalyeeh. Nahoot’a (conclude) – The respondent should admit it, and offer Nalyeeh. The respondent should propose $5000 so there will be no hard feelings. Iina (execute) Siihasin (stability) 59 K’EH TOWARDS HAADAANI 60 20  2/8/2024 HYPO Custody dispute in Navajo court between Navajo and non-Indian. Navajo attempted personal service at non-Indian’s residence, but she evaded personal service. Navajo attempted service by publication in the tribal newspaper where non-Indian will likely not see the publication. Navajo wants to proceed in tribal court. 61 K’É GOVERNS NAVAJO DUE PROCESS Mun Kang v. Chinle Family Court and Concerning Chastity Kang, RPI. SC- CV-37-18. (September 21, 2018) Under FLD, K’é (fairness through mutual respect) controls Navajo due process. K’e requires a Hadane or Hazhaa’aad (in-law to the Dine) to be treated with fairness and respect to ensure notice and an opportunity to defend. K’é requires service by publication where the non-Indian resides, where the non-Indian would likely see the publication. 62 Nistahakes (thinking) 4D ANSWER Nahat’a (problem solving) Anahoot’i’ (problem) – Did Navajo petitioner violate non-Indian Hazhaa’aad’s right to due process by publishing in the tribal newspaper where the non-Indian will likely not see it? Beehaz’aanii (law) – Due process is rooted in K’eh. K’eh requires a Hadane or Hazhaa’aad (in-law to the Dine) to be treated with fairness and respect to ensure notice and an opportunity to defend. K’éh requires service by publication where the In-law resides. Beeheelya (apply) – Here, service must be made on reservation where the Hazhaa’aad will likely not see it. Nahoot’a (conclude) – Yes, Navajo petitioner violates non-Indian Hazhaa’aad’s right to due process by publishing in the tribal newspaper where the non-Indian will likely not see it. Hazhaa’aad has not been treated with fairness and respect to ensure notice. Navajo petitioner needs to do service by publication where she is likely to see it. Iina (execute) Siihasin (stability) 63 21  2/8/2024 NAT’AANII 64 BEST INTEREST OF THE PEOPLE 65 HYPO Julie was the Chair of the Business Committee of the Navajo government. In her campaign for Chair, she promise she would promote government transparency to end corruption. When elected, and appointed to Chair, she ignored the people’s demands to stream the Business meetings on social media. 66 22  2/8/2024 ROLE OF NAT’AANII Terlyn Sherlock v. Navajo Election Administration. SC-CV-64-17. (December 26, 2017). Application for candidacy ~ Entrance into a Hogan East side (good way) Make presence known to all Must enter an election with complete transparency. Standard of conduct for elected leaders are higher and stricter. Nat’aanii is expected to be honest, faithful, and truthful in dealing with the people K’eh between the Nat’aanii and People. -transparent Sneaking around ~ Betrayal of trust  Leads to removal -honest, faithful, Side door truth -words are People will keep Nat’aanii to his words sacred Words are sacred 67 WORDS ARE SACRED In Navajo the delegate swears "Dine hi naat'a do bibee nahaz'aanii bee seziidoo, bik'eh anisht'ee doo, bich'aah sezii dooleel." The Dine people will keep that delegate to his or her words. See Kesoli v. Anderson Security Agency, No. SC-CV-01-05, slip op. at 5-6 (Nav. Sup. Ct. October 12, 2005) ("Words are sacred and never frivolous in Navajo thinking.") In re Grievance of Wagner (Sup. Ct. of the Navajo Nation 2007) 68 Nistahakes (thinking) 4D ANSWER Nahat’a (problem solving) Anahoot’i’ (problem) – Did the Nat’aanii fall short of the standard to be honest, faithful, and truthful by breaking her campaign promises to the people to be transparent? Beehaz’aanii (law) –Standard of conduct for elected leaders are higher and stricter. Nat’aanii is expected to be honest, faithful, and truthful in dealing with the people. The People will hold a Nat’aahnii to his or her word. Beeheelya (apply) – Here, the Nat’aanii promised to be transparent if elected to office. After being elected, the Nat’aanii ignored the people’s demand to stream the public meetings. Nahoot’a (conclude) – Yes, the Nat’aanii falls short of the standard to be honest, faithful, and truthful by breaking her campaign promises to the people to be transparent. Iina (execute) Siihasin (stability) 69 23  2/8/2024 TRUST OF THE PEOPLE 70 HYPO Ricky was a Navajo judge. When he saw his singing partner Buddy charged with embezzlement of tribal monies in his district, Ricky called the white collar crime unit to go easy on Buddy. 71 NAT’AANII UPHOLDS PEOPLE’S TRUST Navajo Nation v. Roy Tso, Jr. SC-CR-03-16. (October 25, 2016) A leader does not ever lay down the trust and the laws of the people he or she serves. Naat’áanii idlíigo éí t’áá nantl‘a dóó t’áá nahontl'alá, háálá láhgóó t’áá nistlá dahwiizt’i’ ákondi, Diné Bibeehaz’áanii dóó hane’ binahji’ baantsáhákeesgo éí choó’įįł dóó hasih ntsáhákeesígíí beego éí t’áá bik’ee’aan hodeezt’i’ dóó chi'dahwiizt’i’, dóó inda bikáá háadahwiizt’i’. Diyin Dine’é Ts’aa’ hadeiidiilaaígíí éí t’áá ákót’éigo yił hadadeiidiilaalá; yahahóót’i’, ałhééhonit’i’, dóó ch’ééhonit’i’, dóó éí t’óó dádeesł’ óoda. Binahjį’ éí t’aa hat'éigi shíí hanahat'a' bee nistł’a jiyáago hanahat'a' bee hazhdinoodzíí’ dóó ajisiihgoda éí dóó hanahat'a' dóó habeehaz’áanii doo t’óó ni’ nizhdoołéeda. Hatsodizin dóó haáne’ éí bee bikáá haazhdoodááł dóó bee nistł’ahazt’i’ ée bee hózhóogo bik’idiyaa nizhdooleeł dóó bi’ áázh doo gááł. Being a leader is tough and it butchers you. Because there are many roadblocks, however Dine Law and oral teaching is used and with hopeful thinking there is a way to bypass and a way out, and a way above it. The Holy People created a Navajo basket with the same aspect. There is an opening, a way around and a way out, it is just not closed. Against all things, sometimes you may get stuck with your planning, probably say too much in planning and made a mistake, because of that is no reason to lay your planning and the laws within yourself on the ground. With prayer and teaching you step above the stumbling block and in beauty you can say I have overcome and go around it. 72 24  2/8/2024 ROLE OF NAT’ÁANII Iina Ba, Inc.v. Navajo Business Regulatory, SC-CV-60-10 (May 15, 2014) Problem solving – “Find sacred solutions” Never lay down people’s trust and laws Ch’ohonit’i’ – opening Bi’aa’iidza Adhere to laws Analyze stories Be positive 73 Nistahakes (thinking) 4D ANSWER Nahat’a (problem solving) Anahoot’i’ (problem) – Did the Nat’aanii violate the trust and laws of the people when the Nat’aanii called the white collar crime unit to go easy on Buddy? Beehaz’aanii (law) –A leader does not ever lay down the trust and the laws of the people he or she serves. Beeheelya (apply) – Here, the Nat’aanii called the white collar crime unit to go easy on his singing parter, Buddy. This violates the trust and laws of the people (abuse of office). Nahoot’a (conclude) – Yes, the Nat’aanii violated the trust and laws of the people when the Nat’aanii called the white collar crime unit to go easy on his singing partner, Buddy. Iina (execute) Removal. If not, Nat’aahnii commitment to some correction measure to avoid interfering with the lives of the people, to avoid more Nayee’ or Hochxo’ for the people. Siihasin (stability) Nat’aahnii teaches about adhering to FLD. 74 USING AND RESPECTING THE PEOPLE’S LAW 75 25  2/8/2024 HYPO Judge orders Larry Lawyer to brief Due Process under Dine Bibeehaz’aanii. Larry submits his brief analyzing due process under Sir William Blackstone’s Commentaries of English Law. 76 Advise Duty of Lawyer as Nat’aanii and teach FLD. Use it. Respect it. Nat’aaniis teach the Fundamental Law of Dine A lawyer working for the People is a leader who should be further guided as follows: Diné bá nijigháao, bá naat'áanii jíliigo éi bá dóó bil nidajilnishígíí Diné bibeenahaz'áanii bee bich'i' yájílti' dóó bee nazhnitin dooleel; azhashii doo yídínéelnáada ndi, áko Diné binant'a'í dóó bá bee agha'diit'aahii jíliigo ei Diné t'áá náhwiist'áánt'éé bibeenahaz'áanii hol niliigo baan tsíjíkees dooleel. As a representative of the People, a leader for the People, and also for those you work with, you must advise and teach them of the laws of the Diné, even though they might not agree with the law; therefore, to be a leader and lawyer for the People, one must use and respect the laws of all the People. In Matter of Frank Seanez, 9 Nav. R. 433, 438 (Nav. Sup. Ct. November 24, 2010) 77 Nistahakes (thinking) 4D ANSWER Nahat’a (problem solving) Anahoot’i’ (problem) –Did Larry violate the Nat’ahnii duty to advise, teach, use and respect the laws of the people when Larry defied the Judge when the Judge ordered the Nat’ahnii to brief Dine Bibeehaz’aanii? Beehaz’aanii (law) –A Nat’aahnii must advise and teach co-workers and people of the laws of the Diné, even though Nat’aahnii might not agree with the law; A Natahnii must use and respect the laws of all the People, Dibe Biheehaz’aanii. Seanez. Beeheelya (apply) – Here, Larry did not brief the Dibe Bibehaz’aanii. Larry did not advise, teach, use, and respect the Dine law even after the Judge ordered him to do so. Nahoot’a (conclude) – Yes, the Larry violated the Nat’ahnii duty to advise, teach, use and respect the laws of the people when Larry defied Judge’s order to brief Dine Bibeehaz’aanii. The Judge may proceed with contempt proceeding (fine, jail, exclude from district or reservation if non- Indian), or report to NNBA (discipline up to disbarment). Iina (execute) Siihasin (stability) 78 26  2/8/2024 WORDS ARE SACRED 79 HYPO Supervisor yells at Employee, “I am going to fire you!” 80 SAAD DILZIN (WORDS ARE SACRED) Words are sacred and never frivolous in Navajo thinking, see Smith, No. SC-CV-50-04 slip op. at 4, and are not to be used to offend or intimidate, particularly in Kesoli's position of supervisor, which, in the context of Navajo thinking makes him a naat'áanii. See Goldtooth v. Naa Tsis' Aan Community School, Inc, No. SC-CV-14-04, slip op. at 8 (Nav. Sup. Ct. July 18, 2005) (identifying executive director of school as naat'áanii). As a naat'áanii he had a responsibility to conduct himself thoughtfully and carefully with respect for his employees under the principle of házhó'ógo, see Navajo Nation v. Rodriguez, No. SC-CR-03-04, slip op. at 10 (Nav. Sup. Ct. December 16, 2004) (discussing principle of hazhó'ógo in context of right against self-incrimination), including utilizing the k'é mechanisms Anderson provides to deal with disputes among employees...Kesoli v. Anderson Security Agency, 8 Nav. R. 724, (Nav. Sup. Ct. 2005). 81 27  2/8/2024 Nistahakes (thinking) 4D ANSWER Nahat’a (problem solving) Anahoot’i’ (problem) –Did Supervisor violate the principle that words are sacred when Supervisor yelled at Employee? Beehaz’aanii (law) –A Nat’aahnii should conduct his speech carefully and respectfully using principle of Hazho’ogo. Kescoli. Beeheelya (apply) – Here, Supervisor yelled at Employee. By doing so, Supervisor did not conduct his speech carefully and respectfully. Supervisor did not treat his words as sacred. Nahoot’a (conclude) – Yes, Supervisor did not conduct his speech carefully and respectfully when he yelled at Employee. Iina (execute) Siihasin (stability) 82 NO CONCENTRATION OF POWER 83 SHARED LEADERSHIP -Hardships the People felt that Ma'iitsoh, Dolii, Nashdojtsoh and Dah yiithi, each -4 Leaders chosen for brought back a crucial element for life, therefore all abilities would be leaders and must work together to sustain -Obtained for the life. The People decided to make all of them leaders. We group re-tell this story to emphasize that, since beyond recorded time, the People have understood the separation of functions of leaders, and that in order to -All are survive as a People, there must be collaboration and coming together both in leaders the community and in the leadership chosen by the People to pool skills, -Brought resources and characteristics. There is no supremacy of anyone back something portion of the day over another, therefore there is no greater skill, resource, valuable characteristic, or leader over the others. The People choose and challenge -Must work their leaders to give something useful and valuable to the People in equal together parts, and the leaders provide. Office of the NN President vs. NN Council, 9 -Goal – Nav. R. 325, (June 2, 2010) Sustain life 84 28  2/8/2024 -No With this episode, Fundamental Law was established that concentratio n of power there should not be concentrated power. There are -Work different components of government that must work together together. The modern system which reflects those components must work together. Coercion – Navajo common law rejects coercion. Navajo Nation v. MacDonald, A-CR-10-90, slip op. at 27-28 (Nav. Sup. Ct. 1992). See also Downey v. Bigman, No SC-CV-07- 95, slip op. at 3-4 (Nav. Sup. Ct. 1995). 85 IISHJANI ADOOLNIIL (CLARITY & TRANSPARENCY) 86 HYPO The court order stated, “Defendant shall pay an amount to Plaintiff so that there are no hard feelings.” 87 29  2/8/2024 K’É GOVERNS NAVAJO DUE PROCESS Effie Edsitty v. Office of Navajo Nation Tax Commission. SC-CV-01- 19. (July 22, 2019). ĺíshjáni adoolniił (to make things clear) so that Doo naaki niliida (there is no doubt). 88 IISHJANI ADOOLNIIL IN CONTEMPT PROCEEDINGS Benjamin Shorty v. Delores Greyeyes. SC-CV-06-14 (June 16, 2014) The need to make things clear Goes to k’é Court must review the order alleged to have been violated and determine if the order was clear as to the duties imposed on the person alleged to be in contempt. Court must exercise contempt power with upmost restraint Navajo court system – restorative justice, horizontal concepts of power Adversarial system – creates tension with traditional dispute resolution, some contempt power may be essential 89 IISHJANI ADOOLNIIL RE FILING REQUIREMENT UNDER THE SOVEREIGN IMMUNITY ACT Barber v. Navajo Housing Authority; Long v. Navajo Shopping Center, Inc. SC-CV-28-12 (June 12, 2014) Clarity and conciseness in important government communications Necessary information must be stated on the notice Nature of claim, Relief sought… Proper conveyance and placement of information 90 30  2/8/2024 Nistahakes (thinking) 4D ANSWER Nahat’a (problem solving) Anahoot’i’ (problem) –Did the Court violate the principle of Iishjani Adoolniil when the Court wrote “Defendant shall pay an amount to Plaintiff so that there are no hard feelings” in the order? Beehaz’aanii (law) –Under the principle of Iishjani Adoolniil, communications by Nat’aahniis must be clear and understandable. Beeheelya (apply) – Here, the words “Defendant shall pay an amount to Plaintiff so that there are no hard feelings” are unclear. The Court needs to specify how much that amount is by asking the parties. Nahoot’a (conclude) – Yes, the Court violated the principle of Iishjani Adoolniil when the Court wrote “Defendant shall pay an amount to Plaintiff so that there are no hard feelings” in the order. Accept responsibility Being accountable (“I will not do this again”) How to restore relationship with K’eh? Iina (execute) Siihasin (stability) 91 T’AAHWOAJIT’EEGO & PERSONAL RESPONSIBILITY 92 HYPO The DAPA petitioner did not serve the respondent. 93 31  2/8/2024 K’É GOVERNS NAVAJO DUE PROCESS Jerrilene Begay v. Navajo Nation Department of Self Reliance. SC-CV-03-19. (May 23, 2019). T’áá hwó’ ají t’éego (‘It is up to you’ stresses personal responsibility and personal accountability. Each person is responsible for our actions and inaction and the positive and negative effects in all aspects of life). Appellant must move along his case. Similarly, if one goes to a medicine man and is told to gather materials to allow judicial review, one’s failure to do so will make it difficult or impossible for the medicine man to perform. Begay vs. Board of Election Supervisors. 2 Nav. R. 120 (1979) 94 Nistahakes (thinking) 4D ANSWER Nahat’a (problem solving) Anahoot’i’ (problem) –Did the Petitioner violate the principle of T’aahwo’ajit’eego when the Petitioner failed to serve the Respondent? Beehaz’aanii (law) –Under the principle of T’aahwo’ajit’eego, each person is responsible for his or her actions and inaction and the positive and negative effects in all aspects of life. The party must move along her case. Beeheelya (apply) – Here, the party failed to move along her case when the petitioner failed to serve the respondent. Nahoot’a (conclude) – Yes, the Petitioner violated the principle of T’aahwo’ajit’eego when the Petitioner failed to serve the Respondent. Iina (execute) Siihasin (stability) 95 ROLE OF NAT’AANII TO UPHOLD DINE VALUES 96 32  2/8/2024 HYPO Lawyer Larry got admitted to practice law in the Navajo Nation. Larry is ready to argue Bilagana notions of due process in a high-profile case. At the hearing, Larry argued for due process based on the practices from the Inquisition in 13th century Europe. 97 TO UPHOLD FUNDAMENTAL LAW Vincent Yazzie v. Joe Shirley, Jr. SC-CV-41-18 (October 10, 2018) Role of Judicial Branch as Hashkeeji Naat’áanii – Teacher, interpreter, disciplinarian. To uphold the values and principles of FLD in the practice of peacemaking, obedience, discipline, punishment, interpreting laws, rendering decisions. 1 NNC 203. Government must learn, practice and educate the Dine on values and principles of these laws. Benally vs. Benally, 8 Nav. R. 796, 902 (Kay. Fam. Ct. 2003). To explain these concepts so we can all learn. To resolve, teach, and discipline. Three branches. Shared leadership. Each branch to function in “a proper way for the public good”. Separation of function. So deeply rooted in Navajo culture. It is essential to maintain balance and harmony. Tuba City Judicial vs. Sloan, 8 Nav. R. 159, 167 (2001) Premised on FLD. Court does not make law, does not legislate from the bench. Title 2 amendment can only be changed by the people. Separation of powers Checks and balances Accountability to the people Anti-corruption FLD controls Nat’aanii terms and time limits 98 ROLE OF A HATAAŁII Dale Tsosie and Hank Whitethorne v. Navajo Board of Election Supervisors and the Navajo Election Administration. SC-CV-68-14. (February 20, 2015). Stories are general knowledge to those who have been taught. Hataałii expresses these oral narratives. Elders and medicine people are the keepers and teachers of FLD. Court will not attack Hataałii’s credibility without expressing its own interpretation of these stories, despite being presented with the opportunity to do so. 99 33  2/8/2024 Nistahakes (thinking) 4D ANSWER Nahat’a (problem solving) Anahoot’i’ (problem) –Did Larry violate the Duty of Nat’aahnii to uphold the values and principles of FLD by arguing Bilagana notions of due process in a high-profile case? Beehaz’aanii (law) – The lawyer is a Nat’aahnii. The Duty of Nat’aahnii is to uphold the values and principles of FLD in the practice of peacemaking, obedience, discipline, punishment, interpreting laws, rendering decisions. Yazzie. Beeheelya (apply) – Here, Larry argued foreign notions of due process in a high-profile case which is different than Navajo due process. Nahoot’a (conclude) –Larry violated the Duty of Nat’aahnii to uphold the values and principles of FLD by arguing Bilagana notions of due process in a high-profile case. Iina (execute) Siihasin (stability) 100 DUTY OF NAT’AANII FOR COMPASSION 101 DUTY OF NAT’AANII FOR COMPASSION Nancy Martine-Alonzo and Martha Garcia v. Carolyn C. Jose and Concerning NEA. SC-CV-37-16. (November 3, 2016). Candidate running for elected office not disqualified because deferred sentencing scheme and restorative justice is consistent with Baahajooba’iyee’ Theories of justice Rehabilitation 102 34  2/8/2024 Baahajooba’iyee’ – compassion and restoration even after gross misconduct K’eh (Clans) Heightened duties of Nat’áanii to seek alternatives to jail Dine justice “throws no one away” FLD gives greater responsibilities and options, other than strictly applying punishment No unreasonable burden on defendant – k’eh Close monitoring of defendant Emphasis on services Effect – gives community Siihasin (hope) 103 HA’DEET’Á Forgiveness is a core value Pardon power Comes from Bilagaana history We don’t share in that same history Closest concept – T’óó ha’deet’á or T’óó hahoo’a’ Hábik’i adoodzoh (Macdonald case) Objective – to restore harmony (hózho) Ha’at’e’ bee ádaahojilnéh – self-disclosure of weaknesses (temper) 104 DUTY OF NAT’AANII TO MAINTAIN HOZHO ENVIRONMENT 105 35  2/8/2024 HOZHO ENVIRONMENT Falana Haldley v. Navajo Nation Department of Public Safety. SC-CV-20-15. (February 10, 2016). Employment Central to living a good life People provide for themselves and their families NPEA Purpose To foster economic self-sufficiency of Navajo familes Requirement Employer’s duty Duty to maintain a safe and clean working environment Duty to provide employment conditions free of prejudice, intimidation, and harassment 106 Burden On employer To show Nízhónígo hahodit’é – Place of employment is maintained in harmony Workplace like a home Work place ~ Home Employees ~ Family Expectation of health, safety, and welfare (both sides) 107 DUTY OF NAT’AANII TO MAINTAIN SELF- SUFFICIENCY 108 36  2/8/2024 T’ÁÁ HWÓ’ AJÍ T’ÉEGO - IINÁ DOONINIT’I’II Iina Ba, Inc.v. Navajo Business Regulatory, SC-CV-60-10 (May 15, 2014) Economic development = Business success Economic self-sufficiency is a collective tribal interest, or right FLD recognizes both (individual and collective) – Balance Economic goal Ancient principle Fundamental and basic to Navajo life and society Higher law Goes to core of tribal sovereignty 109 Nat’aanii Duty To safeguard continuation of our communities and heritage Hozhoogo Iina Doing the harmonious plan Dine shall live together As a viable community On our sacred land To continue our way of life Iina Doo Ninit’i’ii Immutable principle of FLD 110 Nahat’a ROLE OF NAT’ÁANII Alleviating the effects of poverty or economic injustice Providing opportunities to prosper on our own lands Providing the means of survival of our people as a community and sovereign nation. Obstacles to self-sufficiency Lack of education Poverty Remedy Education 111 37  2/8/2024 ROLE OF MODERN EDUCATION Education -survive -not go hungry Learning modern skills -not be thirsty -have a roof over your head Hard work -have clothes to cover you -provide for families Sacrifices Effects of education Professionals Professional businesses 112 Self-sufficiency (individual) Basis is T’áá hwó’ ají t’éego t’éíyá Take care of self Hard work Sacrifices Effects of self-sufficiency Impact on community Supports continuity of community Sustains a prosperous life for an entire community Self-sufficiency (communal) T’áá nihí ak’ineildzil Adika’ adiilwoł 113 FAMILY 114 38  2/8/2024 ATTITUDE TOWARD CHILDREN 115 CHILDREN ARE SACRED Sahar Nouri v. Crownpoint Family Court and Concerning Kyle Dennison, No. SC-CV-41-14 (July 22, 2014) Ałchíní bi beehaz’áanii 116 CLAN IDENTITY & BEST INTEREST OF THE CHILD 117 39  2/8/2024 HYPO Sister petitioned for guardianship over Brother since Mother passed away. Father is unknown on Brother’s birth certificate. What is the best interest of the child under FLD in terms of the child’s clans? 118 Children -members of the mother’s CHILDREN clan -strong Goldtooth vs. Goldtooth, 3 Nav. R. 223 (W.R. Dist. Ct. 1982) relationship 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 courts 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 childrens' place in the entire extended family in order to make a judgment based upon Navajo traditional law. Goldtooth vs. Goldtooth, 3 Nav. R. 223 (W.R. Dist. Ct. 1982) 119 "Under the Navajo doctrine of ak’ei, the grandparents, other extended family members, and the clan relations have a right to know the biological heritage of a child. The Navajo maxim is this: “It must be known precisely from where one has originated.” This means all of the child’s relations must know who the parents are, so the child will eventually know who is related and not related to him or her. The maxim focuses on the identity of a person (here the child) and his or her place in the world, and is a crucial component of the tenet of family cohesion. Davis v. Means, 7 Nav. R. 100, 103-104 (Nav. Sup Ct. 1994)(emphasis added). 120 40  2/8/2024 Knowing one’s point of origination (meaning the parents) is extremely important to the Navajo People, because only then will a person know which adoone’e (clan) and dine’e (people) the person is. Those precepts are essential to a Navajo’s identity and must be known for Navajo One must know them to religious ceremonies. seek hozho (harmony and peace). When applied to a child, they are necessary for the child’s emotional, physical, and spiritual well-being. Thus, under Navajo common law, the child’s best interests require that the father be determined with reasonable certainty." Davis v. Means, 7 Nav. R. 100, 103-104 (Nav. Sup Ct. 1994)(emphasis added). 121 Nistahakes (thinking) 4D ANSWER Nahat’a (problem solving) Anahoot’i’ (problem) – Whether the Court should identify the child’s clans as much as possible because the child’s clans are unknown, particularly the fathers. Beehaz’aanii (law) – It must be known precisely from where one has originated. This means all of the child’s relations must know who the parents are, so the child will eventually know who is related and not related to him or her. Goldtooth. One must know their clans to seek hozho (harmony and peace). They are necessary for a child’s emotional, physical, and spiritual well-being. That’s the BIC. Davis Beeheelya (apply) – Here, the child’s clans are unknown, particularly the fathers. It is important that the child know their clans to know who is related to the child. The BIC is for the child to know his or her clans for the child’s emotional, physical, and spiritual development and well-being. Nahoot’a (conclude) –The Court should identify the child’s clans as much as possible because the child’s clans are unknown, particularly the fathers. The court would inquire about the child’s clans. Iina (execute) Siihasin (stability) 122 GUARDIANSHIP & ADOPTION 123 41  2/8/2024 HYPO Aunt petitioned for guardianship over Niece since parents are unable to care for Niece. Aunt received a favorable social services report. 124 "As this Court understands, there are also traditional notions of guardianship and child care within Dine bi beenahaz’aani. For example, children are not just the children of the parents, but they are children of the clan, especially the mother’s clan. See Goldtooth v. Goldtooth, 3 Nav. R. 223 (W.R. Dist. Ct. 1982). Likewise, a child may be given or offered to a maternal aunt or other close family or clan relative to be raised, especially if that extended relative did not have children of their own. These guardianship arrangements were meant to preserve k’e and harmony within the clan." In the Matter of S.R.E., Minor Child, 8 Nav. R. 869, 872 (W.R. Dist. Ct. 2005). 125 Nistahakes (thinking) 4D ANSWER Nahat’a (problem solving) Anahoot’i’ (problem) – Should Court grant guardianship to Aunt? Beehaz’aanii (law) – A child may be given or offered to a maternal aunt or other close family or clan relative to be raised, especially if that extended relative did not have children of their own. These guardianship arrangements were meant to preserve k’e and harmony within the clan." S.R.E. Beeheelya (apply) – Here, aunt petitioned for guardianship. Aunt could be either maternal or paternal aunt, either which qualifies as “a maternal aunt or other close family or clan relative”. Nahoot’a (conclude) –Court should grant guardianship to Aunt to preserve K’eh and harmony within the clan. Iina (execute) Siihasin (stability) 126 42  2/8/2024 DIVORCE & CUSTODY 127 HYPO In a contested divorce-custody hearing, Harry told the judge, “I should get custody of the child because I am the breadwinner. I am the king of my castle.” 128 CHIILDREN “BELONG” TO THE MOTHER’S CLAN Traditional Wedding – basket ceremony requirements 9 N.N.C. 3(D) (1993). Man Rejection of common law marriage – Unmarried couples who live -moves in with together act immorally because they are said to “steal each other”. In the woman. re Validation of Marriage of Francisco, No. A-CV-15-88, slip op. at 4, -member of his mother’s clan (Nav. Sup. Ct. 1989). -”Haadaani” Lente v. Notah, 3 Nav. R. 72 (1982). Traditionally the father and child lived with the mother's family, and the child was said to "belong" to the mother's clan. Id., 103, 112. When a visitor came, the small children would stay close to their mother. _Id. , 90. While the child belonged to the mother's clan, it was said to be "born for" the father, and a child might say I'll am Bitter-Water, born for Salt."' Id. , 112. 129 43  2/8/2024 Nistahakes (thinking) 4D ANSWER Nahat’a (problem solving) Anahoot’i’ (problem) – Should Court grant custody to father or mother? Beehaz’aanii (law) – Traditionally, the child was said to "belong" to the mother's clan… While the child belonged to the mother's clan, it was said to be "born for" the father, Lente. Beeheelya (apply) – Here, this is a “contested” custody case which means both parents are requesting for custody. Therefore, the mother is also seeking custody. The minor child here would “belong” to the mother seeking custody. Under FLD, mother’s clan trumps the father’s clan. Nahoot’a (conclude) – Therefore, with no other facts, the Court should grant custody to mother to preserve K’eh and harmony within the mother’s clan. Iina (execute) Siihasin (stability) 130 PROPERTY 131 DIVORCE & PROPERTY 132 44  2/8/2024 HYPO At their divorce hearing, Harry said he should get the house he built with his money which was located on Sally’s mother’s land which has been passed to Sally through her clan. 133 DINE AS MATRILINEAL SOCIETY Custody – Children are of the mother’s clan or extended family. Goldtooth v. Goldtooth, 3 Nav. R. 223 (W.R. Dist. Ct. 1982). Property ownership – Property belongs to wife and her children. In re Trust of Benally, 1 Nav. R. 12 (1969); See also Lenta v. Notah, 3 Nav. R. 72 (1982). 134 Man -returns to his family (member DIVORCE of his mother’s clan) -”Yoodeiya” -”Tse haamaz” Lente v. Notah, 3 Nav. R. 72 (1982) "When divorce occurs between a couple living matrilocally, the husband returns to his mother's unit, and the wife and children remain. The same is true in the leadership generation, although divorce is uncommon at the leadership level. When the divorce occurs in patrilocal residence, the wife and the children return to the mother's unit. The husband of course remains." Id., 75-76 135 45  2/8/2024 Apache v. Republic National Life Insurance Co., 3 Nav. R. 250 (Navajo 09/16/1982) As to dividing property, the couple keep what was theirs before marriage and the wife keeps the remainder. One researcher summed up the procedure this way: "Among the people who follow the old laws, the divorce procedure is very simple; the man merely states as he walks out of the hogan : "Tse-hah- maz (Stone Rolls Out.") He takes with him all the goods that were his before marriage. Any property Property accumulated during the union remains with his -Before the wife." Van Valkenburgh, "Navajo Common Law 1," 9 Museum Notes 17, 22 marriage – (1936). Each keep Another method of divorce was counseling by the wife's father and, when it appeared there could be no reconciliation, the couple would "split the -During the blanket," dividing equally the goods they acquired during the marriage. marriage – Therefore it would appear that in the absence of an agreement, the wife Wife keeps would take all. 136 Nistahakes (thinking) 4D ANSWER Nahat’a (problem solving) Anahoot’i’ (problem) – Should Court award the house to Harry or Sally? Beehaz’aanii (law) – Property belongs to wife and her children. Benally. When divorce occurs between a couple living matrilocally, the husband returns to his mother's unit, and the wife and children remain. Beeheelya (apply) – Here, this is a matrilocal arrangement because the couple lived on the mother’s land. There appears to be no children. Thus, when divorce occurs with this matrilocal couple, Harry will return to his mother’s unit, and Sally will remain on her mother’s land. Under FLD, the property belongs to Sally even though Harry may have built the house with his money. Nahoot’a (conclude) – Therefore, the court should award the house to Sally. Iina (execute) Siihasin (stability) 137 K’EH TOWARDS DECEASED 138 46  2/8/2024 HYPO Children of a decedent fight over the decedent’s valuable jewelry collection in court the day before his burial. One child motions the court to delay the burial until the dispute is resolved. 139 KWA’ASINI BAHODILZIN (RESPECT FOR DECEASED) In re the Estate of Nat N. Benally v. Kee, No. SC_CV-49-08 (Navajo 06/25/2009) The Court further reminds the Family Court and the children of the deceased parties that under Dine fundamental law, custom and practice, affairs of the deceased need to be taken care of immediately and with the utmost care. There is a strong principle not to prolong these matters K’eh -Immediate out of respect for the deceased. Burial and property distribution -Reverent should occur without dispute to protect surviving family members. -No dispute Furthermore, death is not a proper and lively thing to discuss. In re Estate of Tsosie, 4 Nav. R. 198, 200 (W.R. Fam. Ct. 1983). It is therefore troubling that the parties submit pleadings referring to the deceased as if they were alive. Hall v. Watson, No. SC-CY-52-07 (Navajo 04/22/2009) 140 However, such delay and inaction regarding a probate matter is inconsistent with Navajo custom and tradition, which is very respectful of matters regarding death. It is not proper to talk about death or dying. In re Estate ojTsosie, 4 Nav. R. 198, 200 (W.R. Dist. Ct. 1983). Moreover, burials and property distribution are to be accomplished without undue delay out of respect for the deceased and without dispute in order to protect surviving -Words are family members. Watson v. Watson, No. SC-CV-52-07, slip op. at 8 (Nav. Sup. sacred Ct. February 24, 2009). "Out of respect for the deceased," kwa 'asini -Don’t go bahozhdisin, means that prompt attention should be given to the there disposition of property so as to allow the deceased to complete Life's journey and so that the survivors can complete the transitional (cleansing) process to resume Life. Thereupon, one can treat and utilize the property as one's own personal property. It should therefore not be surprising that this Court's interpretation of "reasonable time" in probate matters, relying on Dine fundamental law is shorter than a federal or state court's conception of "reasonable time.“ 141 47  2/8/2024 KWA’ASINI BAHOZHDISIN In the Matter of Raymond DeeRoy Spencer, Decendent, Chenoah Bah Jensen v. Jean LaMarr. SC-CV-09-15. (March 27, 2015). Court declined to interfere with funeral K’é For deceased For living Practice No delay, prompt, reverent attention Burial Distribution of property No disputes over body Purpose To protect surviving family members To complete the transitional process. Allows deceased to complete life’s journey. 142 Nistahakes (thinking) 4D ANSWER Nahat’a (problem solving) Anahoot’i’ (problem) – Should Court grant the motion to delay the burial? Beehaz’aanii (law) – Affairs of the deceased need to be taken care of immediately and with the utmost care. There is a strong principle not to prolong these matters out of respect for the deceased. Burial and property distribution should occur without dispute to protect surviving family members Beeheelya (apply) – Here, children of a decedent fight over the decedent’s valuable jewelry collection in court the day before his burial and one child motions the court to delay the burial until the dispute is resolved Nahoot’a (conclude) – The Court should deny the motion to delay the burial. The court should quickly resolve the matter by asking if the parties can quickly settle. If not, then the court should decide the matter without delay out of respect for the deceased. Iina (execute) Siihasin (stability) 143 ORAL WILLS 144 48  2/8/2024 HYPO Petitioner claimed that in a conversation on January 1, 2023, the decedent said Petitioner will get decedent’s 3 acre homesite lease after decedent dies. The decedent wife and children were not present at the conversation. 145 ORAL WILLS It is 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 that such a division will be honored after his death. We know of no other custom in this respect. We hold, therefore, that unless all the members of his immediate family are present and agree [a] Navajo cannot make an oral will. In the Matter of the Estate of Ray Lee, 1 Nav. R. 27, 31-32 (Nav. Ct. App.1971). 146 Nistahakes (thinking) 4D ANSWER Nahat’a (problem solving) Anahoot’i’ (problem) – Was there a valid oral will when the decedent allegedly promised a homesite lease to the petitioner without the presence of the decedent’s wife and children? Beehaz’aanii (law) – An oral will requires 1) all the members of decedent’s immediate family must be present and 2) they must agree. Lee. Beeheelya (apply) – Here, the wife and children of the decedent were not present when the decedent allegedly made the oral will. Therefore, the all the members of decedent’s immediate family were not present. Nahoot’a (conclude) – No, there was no valid oral will on January 1, 2023 when the decedent allegedly promised a homesite lease to the petitioner. Iina (execute) Siihasin (stability) 147 49  2/8/2024 DEATH & PROPERTY 148 Property CLASSIFICATION OF NAALYEHE (FOR PROBATE) -marriage In re Estate of Apachee, 4 Nav. R. 178 (Navajo 10/11/1983) -children The court classifies property as follows: A man is standing in an imaginary circle, and he has all his possessions - -ceremony -land everything he calls life. They are -livestock -goods (1) his wife and children, -hard (2) his religion (including its paraphernalia, mountain dust, bundles, etc.) -soft -ritual (3) his land, -farm (4) his livestock and - animals (5) his jewelry , including money. This agrees in essence with the anthropological material cited in the Estate of Peshlakai which named (1) "Hard goods" (nitl’iz), including coin, silver ornaments, white and yellow shell, coral and cannel coal, (2) "Soft and flexible goods" (yodi), including cloth, baskets, hides, skins and clothing, (3) "Ceremonial values" (jish), including chants, herb medicines, good luck formulae, sacred names, medicine bags, paraphenalia, etc., (4) Agricultural or range land ( keiya), and "Game goods" (Dinech’il altas’ei), consisting of domesticated and wild animals. Opinion and Order, No. WR-CV-304-82 (December 30, 1982). 149 Economy In re Estate of Apachee, 4 Nav. R. 178 (Navajo 10/11/1983) -Livestock -food In this particular case we are dealing with "money". In order to -clothes -money understand the principles of the Navajo common law of probate there -Land are some basic facts about the Navajo economy which must be understood. The Navajo economy has traditionally been based upon grazing sheep for food, clothing and marketing. This ties the Navajo to the land. It 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. 150 50  2/8/2024 K’eh/K’ei -Family unit -Responsibilities In re Estate of Apachee, 4 Nav. R. 178 (Navajo 10/11/1983) -Support -Protection 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, and all the members of the family group have important duties to each other. These duties are based on the need to survive and upon very important religious values which command each to support each other and the group. Some call these family and clan members living together a "residence group," and some call them a "camp." Shepardson and Hammond, "Navajo Inheritance Patterns: Randon or Regular?," V. Ethnology 87, 90 (No. 1, Jan. 1966); Barsh, Navajo Property law and Probate, 1940-1972, p. 13. (Unpublished manuscript. This document was prepared as an experimental outline of Navajo probate law in cooperation with the Navajo court of appeals and former Chief Justice Virgil L. Kirk). The meaning of these terms is actually that groups of Navajo who are related by blood or clan will live together for mutual protection and the common good, and the important point is that there is a difference in the distribution of property, depending upon whether it is an essential piece of property for the maintenance of the camp. 151 Property In re Estate of Apachee, 4 Nav. R. 178 (Navajo 10/11/1983) -Productive There is a division of property into productive goods and nonproductive goods - Group goods. Productive goods, such as sheep and land (including land -Non- permits), are held for the benefit of the individual and the camp, and upon productive goods - death such property is held for the benefit of those living Individual in the camp. Nonproductive goods (jewelry, tools and equipment, non subsistence livestock such as horses) belong to the individual. Cash can present a special problem because it can be treated either as productive property or nonproductive property. Treated as productive property, cash would be held in the camp for its economic security as a unit. Seen as nonproductive, cash would be distributed among family members. 152 Procedure -Gathering In re Estate of Apachee, 4 Nav. R. 178 (Navajo 10/11/1983) -Discussion -Distribution Nonproductive goods are distributed by the camp where the decedent resided Factors at the time of his death. A gathering is held, supervised by an agreed -Immediate family representative, and there is a discussion of how the property should be -Need divided. This process may be assisted by a nataani or some other community leader. (The peacemaker of the Navajo Peace maker Court could also be used). The property is then distributed with a preference to the immediate family members of the decedent, and the comparative need of claimants is also considered. The principle things considered in the distribution are residence in the camp and need, although other relatives not living in the camp may participate. 153