Civil Rights Outline

Contents

I.  General .................................................................................................................................... 1 

A.  Definition of “civil rights” ............................................................................................... 1 

B.  Jurisdiction ....................................................................................................................... 1 

C.  Diné Bi Beenahaz’áanii ................................................................................................... 1 

1.  Source of Navajo civil rights ........................................................................................ 1 

2.  Navajo civil rights must be interpreted using Navajo cultural values .......................... 1 

3.  Use of federal or state precedent to interpret Navajo civil rights concepts .................. 1 

D.  Entities subject to civil rights restrictions ........................................................................ 2 

E.  Civil rights and Navajo statutory law ............................................................................... 2 

1.  Presumption that legislation does not violate civil rights ............................................. 2 

2.  Priority of Bill of Rights over all other statutes ........................................................... 3 

3.  Exception to Navajo Nation Sovereign Immunity Act ................................................. 3 

F.  Bill of rights may not be changed without referendum vote of Navajo electorate .............. 3 

G.  Judicial review ................................................................................................................. 3 

1.  Judicial review of statutes where civil rights are implicated ........................................ 3 

2.  Judicial review of actions taken by tribunals where civil rights are implicated ........... 3 

3.  Judicial extension of statutes providing for remedies of civil rights violations ........... 4 

4.  Judicial review of statutes ............................................................................................ 4 

H.  Rights retained by the people ........................................................................................... 4 

I.  Indian Civil Rights Act (“ICRA”) ....................................................................................... 4 

J.  Issues relating to the United States Constitution ................................................................. 5 

II.  Right to due process ................................................................................................................ 5 

A.  General concepts .............................................................................................................. 5 

1.  Doing justice ................................................................................................................. 5 

2.  Broader than non-Navajo concepts of due process ...................................................... 5 

3.  Must be balanced against the interest of Navajo sovereignty ...................................... 6 

4.  Equality in process ....................................................................................................... 6 

5.  Due process is a necessary precondition for valid court action .................................... 6 

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B.  Diné Bi Beenahaz’áanii ................................................................................................... 7 

1.  Due process has always existed in Navajo society ....................................................... 7 

2.  Due process must be interpreted consistent with Diné Bi Beenahaz’áanii .................. 7 

3.  Due process reflects Navajo values of fairness and respect ......................................... 8 

4.  Persons must be consulted before actions may be taken .............................................. 8 

5.  Due process reflects Navajo concept of k’e ................................................................. 9 

6.  Distributive justice ........................................................................................................ 9 

7.  Due process rights may be protected by a statutory proceeding .................................. 9 

C.  Life, liberty and property interests ................................................................................... 9 

1.  Generally ...................................................................................................................... 9 

2.  Liberty interests .......................................................................................................... 10 

3.  Property interests ........................................................................................................ 11 

D.  Notice and opportunity to be heard ................................................................................ 12 

1.  General ....................................................................................................................... 12 

2.  Notice ......................................................................................................................... 13 

3.  Opportunity to be heard .............................................................................................. 15 

E.  Due process rights in specific situations ........................................................................ 17 

1.  Wage executions ......................................................................................................... 17 

2.  Contempt proceedings ................................................................................................ 17 

3.  Injunctions .................................................................................................................. 18 

4.  Children ...................................................................................................................... 18 

5.  Adoption proceedings ................................................................................................. 18 

6.  Translation issues ....................................................................................................... 18 

7.  Civil defaults .............................................................................................................. 19 

8.  Execution on judgments ............................................................................................. 19 

F.  Procedures that satisfy due process ................................................................................... 19 

1.  Procedures must be meaningful .................................................................................. 19 

2.  Procedures must provide opportunity to raise arguments .......................................... 19 

3.  Procedures must avoid unreasonable delays .............................................................. 19 

4.  Property interests must not be unreasonably put at risk without a showing of the government’s interest in the procedure ................................................................................. 20 

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5.  Procedures must permit representation ...................................................................... 20 

6.  Procedures should not deprive due process on technicalities ..................................... 20 

G.  Substantive due process rights ....................................................................................... 20 

1.  Right of public access to tribunals .............................................................................. 20 

2.  Government must follow its own rules and laws ....................................................... 20 

3.  Rules and statutes must not be ambiguous ................................................................. 21 

H.  Curing due process violations ........................................................................................ 21 

III.  Right to equal protection of the law ................................................................................... 21 

A.  General statement of the right ........................................................................................ 21 

B.  Statutory distinctions must be real and not based upon pretext ..................................... 22 

C.  Statute may not arbitrarily and capriciously deny benefits to certain classes of people 22 

D.  Statute may not unequally benefit or burden racial class ............................................... 22 

1.  General rule ................................................................................................................ 22 

2.  Whether status as “Indian” is a racial distinction ....................................................... 23 

3.  Council may deny certain benefits to non-Navajos .................................................... 23 

E.  Prohibition against disparate treatment on the basis of gender ...................................... 23 

F.  Prohibition against unequal application of a general rule or statute .................................. 23 

G.  Equal protection violations may be cured by changing the scope of a defective statute 23 

H.  Vague statutes ................................................................................................................ 24 

I.  Equal protection challenges ............................................................................................... 24 

1.  Challenge must examine “legislative facts” of disparate treatment ........................... 24 

2.  Challenge must benefit claimant ................................................................................ 24 

IV.  Ex post facto legislation and bills of attainder ................................................................... 24 

A.  Ex post facto legislation ................................................................................................. 24 

B.  Bills of attainder ............................................................................................................. 25 

1.  Definition .................................................................................................................... 25 

2.  Fundamental right ....................................................................................................... 25 

3.  Laws of general application not prohibited ................................................................ 25 

4.  Test for bill of attainder .............................................................................................. 26 

V.  Right of free speech, press and assembly ............................................................................. 26 

A.  Right of free press .......................................................................................................... 26 

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B.  Right of free speech ....................................................................................................... 27 

C.  Right of free assembly ................................................................................................... 27 

D.  Government interests that justify restriction of right to free speech, press or assembly 27 

VI.  Freedom to exercise religious beliefs ................................................................................ 27 

A.  Fundamental right .......................................................................................................... 27 

B.  Neutral laws of general applicability ............................................................................. 27 

C.  Freedom of religion in court proceedings ...................................................................... 28 

VII.  Other fundamental rights ................................................................................................... 28 

A.  Right to marry ................................................................................................................ 28 

B.  Right to just compensation for governmental taking of property .................................. 28 

C.  Right to be free from involuntary servitude ................................................................... 28 

I. General

A. Definition of “civil rights”

• The term “civil rights” implies a selective reference to interests which are deemed to be of superior quality in our scheme of legal values. The classes of rights which can fall under that category are open-ended in character, but they are most often concerned with personal liberty and, more recently, with the right to equal treatment. A.P.S. v. ONLR, 6 Nav. R. 246 (Nav. Sup. Ct. 1990).

B. Jurisdiction

• The Indian Civil Rights Act and the Navajo Bill of Rights protect rights but do not confer jurisdiction. Nez v. Bradley, 3 Nav. R. 126 (Nav. Ct. App. 1982).

C. Diné Bi Beenahaz’áanii

1. Source of Navajo civil rights

• Strict standards of fairness and equity are inherent in the Navajo common law. Estate of Goldtooth Begay, 7 Nav. R. 29 (Nav. Sup. Ct. 1992).

• Strict standards of fairness and equity are inherent in the Navajo common law. Navajo Nation v. MacDonald, Sr., 6 Nav. R. 432 (Nav. Sup. Ct. 1991).

• Navajos believe in beehaz’aanii, a higher law, similar to an overriding, unwritten constitutional law. Bennett v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 319 (Nav. Sup. Ct. 1990).

• The Due Process Clause embodies rights based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our whole history. Plummer v. Plummer, 6 Nav. R. 271 (Nav. Sup. Ct. 1990).

2. Navajo civil rights must be interpreted using Navajo cultural values

• We review the meaning of due process in the Navajo Bill of Rights consistent with Navajo principles. Johnny v. Greyeyes, No. SC-CV-52-08, slip op. (Nav. Sup. Ct. February 27, 2009).

• Federal concepts of civil rights may be considered, but ultimately the rights set out in the Navajo Bill of Rights are to be interpreted in light of Navajo Fundamental Law. Navajo Transport Services v. Schroeder, No. SC-CV-44-06, slip op. (Nav. Sup. Ct. April 30, 2007).

• Though the Court considers federal interpretations, the Court ultimately must interpret the Bill of Rights consistent with Dine' Bi Beenahaz 'áanii. Navajo Nation v. Kelly, No. SC-CR-04-05, slip op. (Nav. Sup. Ct. July 24, 2006).

• The Court interprets the Navajo Nation Bill of Rights in a way that will enhance Navajo culture and tradition. Bennett v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 319 (Nav. Sup. Ct. 1990).

3. Use of federal or state precedent to interpret Navajo civil rights concepts

• District Court committed reversible error when it directly applied federal cases interpreting the Due Process Clause of the Fourteenth Amendment to the United States Constitution, with no explanation of why those cases were binding on the Navajo Nation. Navajo Transport Services v. Schroeder, No. SC-CV-44-06, slip op. (Nav. Sup. Ct. April 30, 2007).

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• Federal concepts of civil rights may be considered, but ultimately the rights set out in the Navajo Bill of Rights are to be interpreted in light of Navajo Fundamental Law. Navajo Transport Services v. Schroeder, No. SC-CV-44-06, slip op. (Nav. Sup. Ct. April 30, 2007).

• District Court may not decide due process issue exclusively under federal law. Navajo Transport Services v. Schroeder, No. SC-CV-44-06, slip op. (Nav. Sup. Ct. April 30, 2007).

• Though the Court considers federal interpretations, the Court ultimately must interpret the Bill of Rights consistent with Dine' Bi Beenahaz 'áanii. Navajo Nation v. Kelly, No. SC-CR-04-05, slip op. (Nav. Sup. Ct. July 24, 2006).

• Merely because the Navajo Bill of Rights uses the same Civil Rights term does not mean that the Court should simply adopt and apply federal interpretations. Navajo Nation v. Kelly, No. SC-CR-04-05, slip op. (Nav. Sup. Ct. July 24, 2006).

• Navajo courts are not bound by previous case law that applies federal precedent to interpret the Navajo Bill of Rights. Navajo Nation v. Kelly, No. SC-CR-04-05, slip op. (Nav. Sup. Ct. July 24, 2006).

• The Supreme Court is not bound by previous case law that applies federal case law to the Navajo Bill of Rights. Eriacho v. Ramah Dist. Ct., 8 Nav. R. 617 (Nav. Sup. Ct. 2005).

• The court will still consider federal approaches to the problem, especially when the use of non-traditional devices such as courts, police, and jails are at issue. Eriacho v. Ramah Dist. Ct., 8 Nav. R. 617 (Nav. Sup. Ct. 2005).

• The Indian Civil Rights Act does not require the Navajo courts to apply federal interpretations of civil rights concepts, but only mandates the application of similar language. Navajo Nation v. Rodriguez, No. 8 Nav. R. 604 (Nav. Sup. Ct. 2004).

• Federal courts have declined to blindly apply federal interpretations of an equivalent constitutional provision in certain circumstances when tribal cultural values dictate a different outcome. Navajo Nation v. Rodriguez, No. 8 Nav. R. 604 (Nav. Sup. Ct. 2004).

• The Navajo Supreme Court has applied federal interpretations, but has augmented them with Navajo values, often providing broader rights than that provided in the equivalent federal provision. Navajo Nation v. Rodriguez, No. 8 Nav. R. 604 (Nav. Sup. Ct. 2004).

D. Entities subject to civil rights restrictions

• Those who provide a public service, including municipalities and corporations, must give equal treatment. A.P.S. v. ONLR, 6 Nav. R. 246 (Nav. Sup. Ct. 1990).

E. Civil rights and Navajo statutory law

1. Presumption that legislation does not violate civil rights

• There is a presumption that the Navajo Nation Council will not enact legislation which would deny civil rights in contravention of the Navajo Nation Bill of Rights. In the Matter of Certified Question, 8 Nav. R. 132 (Nav. Sup. Ct. 2001).

• There is a presumption that the Navajo Nation Council would not intend to violate the Navajo Nation Bill of Rights by enacting an ex post facto law, a bill of attainder or denying an individual due process or equal protection of the law. In the Matter of Certified Question, 8 Nav. R. 132 (Nav. Sup. Ct. 2001).

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2. Priority of Bill of Rights over all other statutes

• The Bill of Rights takes precedence over all other statutes. In the Matter of Certified Question, 8 Nav. R. 132 (Nav. Sup. Ct. 2001).

3. Exception to Navajo Nation Sovereign Immunity Act

• The Council ensured that rights could be freely exercised in court when it recognized that the Bill of Rights was a limited exception to the Sovereign Immunity Act. Bennett v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 319 (Nav. Sup. Ct. 1990).

F. Bill of rights may not be changed without referendum vote of Navajo electorate

• The Bill of Rights has greater force as an “organic law” which may not be deleted, abridged or amended except by referendum vote of the Navajo electorate. Bennett v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 319 (Nav. Sup. Ct. 1990).

G. Judicial review

1. Judicial review of statutes where civil rights are implicated

• The Navajo Nation Bill of Rights is a fundamental, overriding statute which by its own terms and necessary implication allows judicial review to decide whether another law or act of the Navajo Nation government is void because of a violation of fundamental rights. Bennett v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 319 (Nav. Sup. Ct. 1990).

• Civil rights laws are given liberal construction, meaning that they are liberally construed in order that their beneficent objectives may be realized to the fullest extent possible. To this end, courts favor broad and inclusive application of statutory language by which the coverage of legislation to protect and implement civil rights is defined. A.P.S. v. ONLR, 6 Nav. R. 246 (Nav. Sup. Ct. 1990).

• Exceptions and limitations which restrict the operation of civil rights laws are strictly construed. A.P.S. v. ONLR, 6 Nav. R. 246 (Nav. Sup. Ct. 1990).

• Tribal laws and procedures are often influenced by tribal custom and can differ greatly from Anglo interests. Thus, tribal courts are important mechanisms for protecting significant tribal interests. Plummer v. Plummer, 6 Nav. R. 271 (Nav. Sup. Ct. 1990).

• Navajo courts must review the actions of the Council to ensure they comply with the Navajo Bill of Rights. Yazzie v. Nav. Bd. of Elec. Supervisors, 1 Nav. R. 213 (Nav. Ct. App. 1978).

• The Indian Civil Rights Act requires Navajo courts to review the actions of the Council to ensure they ensure fundamental fairness and protect civil rights. Halona v. MacDonald, 1 Nav. R. 189 (Nav. Ct. App. 1978).

2. Judicial review of actions taken by tribunals where civil rights are implicated

• Where it is not clear that an individual has made a knowing and intelligent choice between claiming or waiving a fundamental privilege, and where the Supreme Court sees errors to which no exception has been taken and they would “seriously affect the fairness, integrity or public reputation of judicial proceedings,” it will act. MacDonald, Sr. v. Navajo Nation, 6 Nav. R. 290 (Nav. Sup. Ct. 1990).

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• It is incumbent upon Navajo Nation Courts to preserve concepts of due process of law. Mustach v. Nav. Bd. of Elec. Supervisors, 5 Nav. R. 115 (Nav. Sup. Ct. 1987).

3. Judicial extension of statutes providing for remedies of civil rights violations

• Remedial policies expressed in civil rights laws may be judicially extended through the influence they have in the interpretation of legislation. A.P.S. v. ONLR, 6 Nav. R. 246 (Nav. Sup. Ct. 1990).

4. Judicial review of statutes

• The judiciary has the power to construe and interpret legislation and the terms used therein. PC&M Const. Co. v. Nav. Nat., 7 Nav. R. 58 (Nav. Sup. Ct. 1993).

• The judiciary has the power to construe and interpret legislation and the terms used therein. McCabe v. Walters, 5 Nav. R. 43 (Nav. Ct. App. 1985).

• Navajo courts have the right to engage in judicial review of Council actions. Halona v. MacDonald, 1 Nav. R. 189 (Nav. Ct. App. 1978).

5. Judicial review of use of the property of the Navajo Nation

• Where the property of the Navajo People is involved, the court has a duty to assume jurisdiction as a guardian of that property to determine whether it is being managed in the best interests of the Navajo People. Judy v. White, 8 Nav. R. 769 (Chin. Dist. Ct. 2002).

• District Court is required to assume jurisdiction as a guardian or custodian over property of the Navajo People to determine whether it is being managed in the best interests of the Navajo People. Tome v. Navajo Nation, 4 Nav. R. 159 (W.R. Dist. Ct. 1983).

H. Rights retained by the people

• The Navajo Nation Bill of Rights also directly recognizes Navajo custom and tradition by providing as follows: “The enumeration herein of certain rights, shall not be construed to deny or disparage others retained by the people.” Bennett v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 319 (Nav. Sup. Ct. 1990).

• The rights retained by the people are beehaz’aanii. Bennett v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 319 (Nav. Sup. Ct. 1990).

I. Indian Civil Rights Act (“ICRA”)

• The Court gives primacy to the Navajo Nation Bill of Rights over the ICRA because due process protections are a product of moral principles, and Navajo morality and tribal customs frame such principles in the Navajo way. Plummer v. Plummer, 6 Nav. R. 271 (Nav. Sup. Ct. 1990).

• The ICRA guarantees procedural due process in hearings before tribal administrative agencies. Mustach v. Nav. Bd. of Elec. Supervisors, 5 Nav. R. 115 (Nav. Sup. Ct. 1987).

• Procedural due process, under the ICRA, relates to the requisite characteristics of proceedings seeking to effect a deprivation of liberty or property. Mustach v. Nav. Bd. of Elec. Supervisors, 5 Nav. R. 115 (Nav. Sup. Ct. 1987).

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• The due process clause of the ICRA requires that Indian governments and courts ensure fundamental fairness in all tribal actions. Keeswood v. Navajo Tribe, 2 Nav. R. 46 (Nav. Ct. App. 1979).

• ICRA requires Navajo courts to review the actions of the Council to ensure they ensure fundamental fairness and protect civil rights. Halona v. MacDonald, 1 Nav. R. 189 (Nav. Ct. App. 1978).

J. Issues relating to the United States Constitution

• Navajo courts will defer to the federal judiciary on issues of the constitutionality of federal statutes. Means v. District Court, 7 Nav. R. 383 (Nav. Sup. Ct. 1999).

K. Historical origin of American civil rights

• Individual rights are a basic foundation of American government and society. The purpose of individual rights is to protect the individual from governmental intrusions into personal liberties. Historically, personal liberties were created to keep the government from becoming too powerful and abusive. Benally v. Benally, 8 Nav. R. 796 (Kay. Fam. Ct. 2003).

• To prevent the abusive government seen in England, the American founding fathers identified a set of rules that limited the government’s use of power against its own people. The purpose of these rules was to protect individuals from unwarranted governmental intrusions. The founding fathers recognized the Bill or Rights and incorporated it into its governmental foundation, the Constitution. Benally v. Benally, 8 Nav. R. 796 (Kay. Fam. Ct. 2003).

• In American civil rights, the due process clause became extremely important considering the adversarial and coercive nature of the American legal system. Benally v. Benally, 8 Nav. R. 796 (Kay. Fam. Ct. 2003).

II. Right to due process

A. General concepts

1. Doing justice

• A Navajo court is not above the law. Navajo due process requires that Navajo courts be just and do justice. Johnny v. Greyeyes, No. SC-CV-52-08, slip op. (Nav. Sup. Ct. February 27, 2009).

• Navajo due process requires that Navajo courts be just and do justice. Fort Defiance Housing Corp. v. Lowe, 8 Nav. R. 463 (Nav. Sup. Ct. 2004).

• Due process is fairness in the adversarial system. Benally v. Benally, 8 Nav. R. 796 (Kay. Fam. Ct. 2003).

• The end goal of Navajo justice is helping them live together well. Our Justice maxim is this: hazho’ sokee’ – stay together nicely. Ben v. Burbank, 7 Nav. R. 222 (Nav. Sup. Ct. 1996).

2. Broader than non-Navajo concepts of due process

• Navajo due process encompasses a wider array of rights than due process under the United States Constitution. Fort Defiance Housing Corp. v. Lowe, 8 Nav. R. 463 (Nav. Sup. Ct. 2004).

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• Like due process, K’é 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. Benally v. Benally, 8 Nav. R. 796 (Kay. Fam. Ct. 2003).

• Traditional Navajo due process encompasses a wider zone of interest than general American due process. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996).

3. Must be balanced against the interest of Navajo sovereignty

• The court must be cautious in finding due process protections where Navajo sovereignty is at issue. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996).

• 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 Indian Civil Rights Act and the Navajo Bill of Rights, and the courts may apply Navajo due process in a way that protects civil liberties while preserving Navajo culture and self government. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996).

• Courts must interpret due process in a way that it protects civil liberties while preserving Navajo culture and self-government. Bennett v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 161 (Nav. Sup. Ct. 1995).

• 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 Indian Civil Rights Act and the Navajo Bill of Rights, and the courts may apply Navajo due process in a way that protects civil liberties while preserving Navajo culture and self government. In re Certified Questions II, 6 Nav. R. 105 (Nav. Sup. Ct. 1989).

• When Navajo sovereignty and cultural autonomy are at stake, the Navajo courts must have broad based discretion in interpreting the due process clauses of the Indian Civil Rights Act and the Navajo Bill of Rights, and the courts may apply Navajo due process in a way that protects civil liberties while preserving Navajo culture and self government. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988).

4. Equality in process

• Navajo due process is concerned with equality in process, not outcome. That is, everyone is “equal” before the law, and so long as everyone has an opportunity to be heard, the outcome is irrelevant. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996).

5. Due process is a necessary precondition for valid court action

• Action will be dismissed without prejudice where there was a continued violation of due process and Diné bi beenahaz’áanii. In the Matter of Adult Guardianship of Begay, 8 Nav. R. 896 (W.R. Fam. Ct. 2006).

• Where due process was not followed in issuing an exclusion order without a hearing, such failure, by itself, is enough to justify a permanent writ of mandamus. In the Matter of A.P., 8 Nav. R. 671 (Nav. Sup. Ct. 2005).

• No judgment can be granted in a suit unless the defendant has actually received notice of the suit and an opportunity to appear. Matter of Adoption of S.C.M., 4 Nav. R. 167 (W.R. Dist. Ct. 1983).

• Notice to parents in adoption cases is absolutely required in order for a court to have jurisdiction to issue a decree, and if jurisdiction is not obtained through proper notice, then any judgment

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decree or order is void for all purposes and ineffective from the beginning. Matter of Adoption of Four Children, 4 Nav. R. 9 (Nav. Ct. App. 1983).

• Where there is no certificate of service to show proper notice, and it is obvious from the file that there has been no proper actual serve, the court may not act. Lente v. Notah, 3 Nav. R. 72 (Nav. Ct. App. 1982).

B. Diné Bi Beenahaz’áanii

1. Due process has always existed in Navajo society

• “Due process” has always existed in Diné society; the fact that the English words are used does not necessarily mean that the concept and legal theory originated with the Anglo-Americans. Joe v. Black, No. SC-CV-62-06, slip op. (Nav. Sup. Ct. November 29, 2007).

• The concept of due process was not brought to the Navajo Nation by the Indian Civil Rights Act nor the Navajo Bill of Rights. Estate of Goldtooth Begay, 7 Nav. R. 29 (Nav. Sup. Ct. 1992).

• The concept of due process was not brought to the Navajo Nation by the Indian Civil Rights Act or the Navajo Bill of Rights. Begay v. Navajo Nation, 6 Nav. R. 20 (Nav. Sup. Ct. 1988).

2. Due process must be interpreted consistent with Diné Bi Beenahaz’áanii

• Navajo Supreme Court interprets due process in light of Navajo common law. Navajo Nation v. Kelly, No. SC-CR-04-05, slip op. (Nav. Sup. Ct. July 24, 2006).

• The Supreme Court interprets due process in light of Navajo common law. Eriacho v. Ramah Dist. Ct., 8 Nav. R. 617 (Nav. Sup. Ct. 2005).

• Navajo due process must be interpreted in light of the customs and traditions, or common law, of the Navajo people and in a manner that will enhance Navajo culture, tradition and sovereignty. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996).

• Navajo due process rights are to be considered in light of the enjoyment and protection of rights by all Navajos. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996).

• Claims made under due process rights are subject to considerations of the community good and Navajo perceptions of moral right. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996).

• Claims made under due process rights are subject to considerations of the community good and Navajo perceptions of moral right. Plummer v. Plummer, 6 Nav. R. 271 (Nav. Sup. Ct. 1990).

• Navajo due process rights are to be considered in light of the enjoyment and protection of rights by all Navajos. Plummer v. Plummer, 6 Nav. R. 271 (Nav. Sup. Ct. 1990).

• Navajo law governs the interpretation of due process under the Navajo Bill of Rights and the Indian Civil Rights Act. In re Certified Questions II, 6 Nav. R. 105 (Nav. Sup. Ct. 1989).

• 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. In re Certified Questions II, 6 Nav. R. 105 (Nav. Sup. Ct. 1989).

• Navajo law governs the interpretation of due process under the Navajo Bill of Rights and the Indian Civil Rights Act. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 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. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988).

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3. Due process reflects Navajo values of fairness and respect

• Due process is fundamental fairness in a Navajo cultural context. Johnny v. Greyeyes, No. SC-CV-52-08, slip op. (Nav. Sup. Ct. February 27, 2009).

• Due process requires courts to ensure fundamental fairness in all tribal actions. Johnny v. Greyeyes, No. SC-CV-52-08, slip op. (Nav. Sup. Ct. February 27, 2009).

• The Navajo concept of due process is unique, in that it applies concepts of fairness consistent with Navajo values. Navajo Transport Services v. Schroeder, No. SC-CV-44-06, slip op. (Nav. Sup. Ct. April 30, 2007).

• As a general rule, the Supreme Court must provide due process through fundamental fairness and the Navajo value of k’e. Fort Defiance Housing Corp. v. Allen, 8 Nav. R. 492 (Nav. Sup. Ct. 2004).

• Navajo due process includes the concept of fundamental fairness. Fort Defiance Housing Corp. v. Lowe, 8 Nav. R. 463 (Nav. Sup. Ct. 2004).

• Under due process, courts must ensure fundamental fairness in all tribal actions. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996).

• Due process is fundamental fairness in a Navajo cultural context. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996).

• Due process is applied with strict standards of fairness and respect. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996).

• Due process requires adherence to the principles of justice and fair play. Bennett v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 161 (Nav. Sup. Ct. 1995).

• Due process is fundamental fairness in a Navajo cultural context. Estate of Goldtooth Begay, 7 Nav. R. 29 (Nav. Sup. Ct. 1992).

• Strict standards of fairness and equity are inherent in the Navajo common law. Estate of Goldtooth Begay, 7 Nav. R. 29 (Nav. Sup. Ct. 1992).

• Due process is found by synthesizing the principles of Navajo custom and government and it is applied with fairness and respect. Estate of Goldtooth Begay, 7 Nav. R. 29 (Nav. Sup. Ct. 1992).

• Strict standards of fairness and equity are inherent in the Navajo common law. Navajo Nation v. MacDonald, Sr., 6 Nav. R. 432 (Nav. Sup. Ct. 1991).

• Due process is fundamental fairness in a Navajo cultural context. Navajo Nation v. Platero, 6 Nav. R. 422 (Nav. Sup. Ct. 1991).

• Navajo customary due process is carried out with fairness and respect. Matter of A.W., 6 Nav. R. 38 (Nav. Sup. Ct. 1988).

• Navajo customary due process is carried out with fairness and respect. Begay v. Navajo Nation, 6 Nav. R. 20 (Nav. Sup. Ct. 1988).

• Due process requires adherence to the principles of justice and fair play. Yazzie v. Jumbo, 5 Nav. R. 75 (Nav. Sup. Ct. 1986).

• Under due process, courts must ensure fundamental fairness in all tribal actions. Keeswood v. The Navajo Tribe, 2 Nav. R. 46 (Nav. Ct. App. 1979).

4. Persons must be consulted before actions may be taken

• The applicable maxim is, “it's up to him,” meaning that the individual must be consulted before action affecting his interest can be taken. In re Custody of T.M., 8 Nav. R. 78 (Nav. Sup. Ct. 2001).

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5. Due process reflects Navajo concept of k’e

• The primary principle that informs Supreme Court’s interpretation of procedural due process is k’e. Johnny v. Greyeyes, No. SC-CV-52-08, slip op. (Nav. Sup. Ct. February 27, 2009).

• K’e, which fosters fairness through mutual respect, requires that an individual is fully informed and provided an opportunity to speak. The Family Court therefore has an obligation to protect Petitioner's right to due process of law. Johnny v. Greyeyes, No. SC-CV-52-08, slip op. (Nav. Sup. Ct. February 27, 2009).

• As a general rule, the Supreme Court must provide due process through fundamental fairness and the Navajo value of k’e. Fort Defiance Housing Corp. v. Allen, 8 Nav. R. 492 (Nav. Sup. Ct. 2004).

• K’e frames the Navajo perception of moral right and therefore this Court’s interpretation of due process rights. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996).

• In light of k’e, due process can be understood as a means to ensure that individuals who are living in a state of disorder or disharmony are brought back into the community so that order for the entire community can be reestablished. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996).

6. Distributive justice

• Navajo due process is concerned with equality in process, not outcome. That is, everyone is “equal” before the law, and so long as everyone has an opportunity to be heard, the outcome is irrelevant. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996).

• Distributive justice is concerned with the well-being of everyone in a community. For instance, if I see a hungry person, it does not matter whether I am responsible for the hunger. If someone is injured, it is irrelevant that I did not hurt that person. I have a responsibility as a Navajo to treat everyone as if he or she was my relative and therefore to help that hungry person, I am responsible for all my relatives. This value which translates itself into law under the Navajo system of justice is that everyone is part of a community, and the resources of the community must be shared with all. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996).

7. Due process rights may be protected by a statutory proceeding

• A statutory scheme can be the source of due process rights for an elected official. In re Certified Questions II, 6 Nav. R. 105 (Nav. Sup. Ct. 1989).

• A statutory scheme can be the source of due process rights. Failure to follow statutes may deny a citizen due process. In re Removal of Katenay, 6 Nav. R. 81 (Nav. Sup. Ct. 1989).

C. Life, liberty and property interests

1. Generally

a) Fundamental right to life, liberty and the pursuit of happiness

• The Bill of Rights provides that “[l]ife, liberty, and the pursuit of happiness are recognized as fundamental individual rights of all human beings.” Cody v. Greyeyes, No. SC-CV-09-09, slip op. (Nav. Sup. Ct. March 11, 2009).

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• The Navajo Nation Bill of Rights recognizes liberty as a fundamental right. Begay v. Navajo Election Admin., 8 Nav. R. 241 (Nav. Sup. Ct. 2002).

• Section 3 of the Navajo Nation Bill of Rights recognizes life, liberty, and the pursuit of happiness as fundamental individual rights of all human beings. Pelt v. Shiprock Dist. Ct., 8 Nav. R. 111 (Nav. Sup. Ct. 2001).

• Life, liberty and the pursuit of happiness are recognized as fundamental rights of all human beings in the Navajo Nation Bill of Rights. Bennett v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 319 (Nav. Sup. Ct. 1990).

b) Due process required before individual may suffer deprivation of life, liberty or property

• Liberty cannot be taken away unless it is done using a fair process ("due process") and the law must be evenly applied ("equal protection of the law"). Begay v. Navajo Election Admin., 8 Nav. R. 241 (Nav. Sup. Ct. 2002).

• Due process must be provided when the government takes private property without the owner’s consent. Estate of Goldtooth Begay, 7 Nav. R. 29 (Nav. Sup. Ct. 1992).

• No person may be deprived of life, liberty or property without due process of law. Bennett v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 319 (Nav. Sup. Ct. 1990).

• Due process and just compensation must be provided when the government takes private property without the owner’s consent. Dennison v. Tucson Gas & Electric Co., 1 Nav. R. 95 (Nav. Ct. App. 1974).

c) Must show deprivation before due process rights arise

• Due process rights attendant to removing an elected official depend upon a showing of an adversely affected life, liberty or property interest. Vandever v. N.N. Ethics & Rules Ofc., 7 Nav. R. 356 (Nav. Sup. Ct. 1998).

• In order to assert a due process right under Navajo law, a claimant must first assert a property or liberty interest that is protected by due process and which is being deprived in some way by governmental activity. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996).

• 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. In re Certified Questions II, 6 Nav. R. 105 (Nav. Sup. Ct. 1989).

• In order to assert a due process right under Navajo law, a claimant must first assert a property or liberty interest that is protected by due process and which is being deprived in some way by governmental activity. Yazzie v. Jumbo, 5 Nav. R. 75 (Nav. Sup. Ct. 1986).

2. Liberty interests

a) Right to participate in the political process

• For purposes of due process of law under Navajo common law, the right to participate in the political process is considered a protected liberty right. Begay v. Navajo Election Admin., 8 Nav. R. 241 (Nav. Sup. Ct. 2002).

• Due process protects the right to seek political office. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996).

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• Due process protects the right to seek political office. Estate of Goldtooth Begay, 7 Nav. R. 29 (Nav. Sup. Ct. 1992).

• Political liberty is the liberty of the citizen to participate in the operations of government, and particularly in the making and administration of the law. Bennett v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 319 (Nav. Sup. Ct. 1990).

• In Navajo tradition, government and governing was a matter of the consensus of the people, and Navajos had a participatory democracy. Bennett v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 319 (Nav. Sup. Ct. 1990).

• Long before the U.S. extended the privilege of the vote to women and to those who did not own property, all Navajos participated in public decisions. Bennett v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 319 (Nav. Sup. Ct. 1990).

• The due process liberty interest protects the right to seek political office. Bennett v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 319 (Nav. Sup. Ct. 1990).

• A legislature can set minimum qualifications for public office; particularly those having to do with integrity and honesty, but without a showing of a valid and substantial public interest, arbitrary qualifications are invalid. Bennett v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 319 (Nav. Sup. Ct. 1990).

b) Right not to be incarcerated for debts

• Incarceration for a civil debt is prohibited in the Navajo Nation. Cody v. Greyeyes, No. SC-CV-09-09, slip op. (Nav. Sup. Ct. March 11, 2009).

• An indefinite civil contempt order jailing a party solely for failure to pay civil judgment for contract debt is an unreasonable deprivation of liberty contrary to the Navajo Nation Bill of Rights. Cody v. Greyeyes, No. SC-CV-09-09, slip op. (Nav. Sup. Ct. March 11, 2009).

• Section 3 of the Navajo Nation Bill of Rights prohibits incarceration for failure to pay a judgment on a contract as an unreasonable deprivation of liberty. Pelt v. Shiprock Dist. Ct., 8 Nav. R. 111 (Nav. Sup. Ct. 2001).

• Appointing counsel to the position of prosecutor is not “peonage,” which refers to imprisonment for debt or forced labor. Matter of Appointment of Tuba City District Prosecutor, 1 Nav. R. 168 (Nav. Ct. App. 1977).

3. Property interests

a) Elected office

• Elected officials have no property interest in their elected office. Vandever v. N.N. Ethics & Rules Ofc., 7 Nav. R. 356 (Nav. Sup. Ct. 1998).

• There is not property right to hold public office. Bennett v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 319 (Nav. Sup. Ct. 1990).

• There is no property interest in public office. Navajo Nation v. MacDonald, 6 Nav. R. 463 (W.R. Dist. Ct. 1989).

• An elected official does not have a property right in public office. The office belongs to the voting public. Removal of Katenay, 6 Nav. R. 81 (Nav. Sup. Ct. 1989).

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b) Causes of action

• A cause of action is a property right under Navajo due process. Phillips v. Navajo Housing Auth., 8 Nav. R. 751 (Nav. Sup. Ct. 2005).

• The Navajo Nation Council has the authority to change the law in situations not involving vested civil rights, but it cannot retroactively deprive a litigant of the property right to sue for injuries. In the Matter of Certified Question, 8 Nav. R. 132 (Nav. Sup. Ct. 2001).

c) Government benefits

• Government benefits and entitlements may be protected property interest such that due process protections are required. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996).

• Navajo due process would protect applicants for governmental benefits. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996).

d) Taxes

• Exaction of a tax constitutes a deprivation of property, and the Nation must provide procedural safeguards against unlawful exactions to satisfy due process. Blaze Const. v. Navajo Tax Comm’n, 7 Nav. R. 435 (Nav. Sup. Ct. 1999).

e) Employment

• The Navajo Nation Council made the policy determination that employment in the Navajo Nation is a valuable individual property right. This right cannot be denied by an employer without a showing of “just cause,” and a statement of what that just cause happens to be in writing. Smith v. Red Mesa Unified School Dist., 7 Nav. R. 135 (Nav. Sup. Ct. 1995).

f) Regulatory requirements relating to apportionment for school districts

• The imposition of regulatory requirements relating to apportionment for school districts does not impact “property”. Thus, there is no due process violation and no “just compensation” is due. The schools are “tribal organizations” for the purpose of obtaining federal funding under the Indian Self-Determination and Education Act, and as such, they must comply with Navajo law. Rough Rock Comm. Sch. v. Navajo Nation, 7 Nav. R. 199 (Nav. Sup. Ct. 1996).

D. Notice and opportunity to be heard

1. General

• Due process requires notice and an opportunity to be heard before the tribunal. Johnny v. Greyeyes, No. SC-CV-52-08, slip op. (Nav. Sup. Ct. February 27, 2009).

• Party was removed from her home with all of the included deprivations of property and liberty without notice of the underlying cause for the removal. At the time, she was not afforded the opportunity to present her response to the petition. Although the party knew of the petition for guardianship at the point of the Family Court’s decision, it would be an inappropriate precedent to allow remedial actions to so easily cure a due process violation. Diné Bi Beenahaz’áanii principles

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of hazhó’ógo have been violated. In the Matter of Adult Guardianship of Begay, 8 Nav. R. 896 (W.R. Fam. Ct. 2006).

• Navajo due process requires notice and opportunity to be heard before tribunal. Seaton v. Greyeyes, No. SC-CV-04-06, slip op. (Nav. Sup. Ct. March 28, 2006).

• Due process requires meaningful notice and an opportunity to be heard before the taking of property. Green Tree Servicing v. King, 8 Nav. R. 833 (W.R. Dist. Ct. 2005).

• Government cannot penalize anyone without prior notice and an opportunity to prepare a defense against levying the penalty. Manygoats v. Cameron Trading Post, 8 Nav. R. 3 (Nav. Sup. Ct. 2000).

• Due process provides for notice and an opportunity to be heard. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996).

• Due process requires notice and provides all parties to a dispute an opportunity to be heard. Bennett v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 161 (Nav. Sup. Ct. 1995).

• Due process requires notice and provides all parties to a dispute an opportunity to be heard before the taking of property. Reservation Bus. Svcs. v. Albert, 7 Nav. R. 123 (Nav. Sup. Ct. 1995).

• Due process requires notice and provides all parties to a dispute an opportunity to be heard. Estate of Goldtooth Begay, 7 Nav. R. 29 (Nav. Sup. Ct. 1992).

• Procedural due process requires notice, an opportunity to be heard and to defend before a tribunal with jurisdiction to hear the matter. In re Certified Questions II, 6 Nav. R. 105 (Nav. Sup. Ct. 1989).

• Due process requires notice and provides all parties to a dispute an opportunity to be heard. In re Removal of Katenay, 6 Nav. R. 81 (Nav. Sup. Ct. 1989).

• The heart of due process is notice and an opportunity to present and defend a position. Begay v. Navajo Nation, 6 Nav. R. 20 (Nav. Sup. Ct. 1988).

• Due process requires notice and provides all parties to a dispute an opportunity to be heard. Mustach v. Nav. Bd. of Elec. Supervisors, 5 Nav. R. 115 (Nav. Sup. Ct. 1987).

• Procedural due process requires notice, an opportunity to be heard and to defend before a proper tribunal. Mustach v. Nav. Bd. of Elec. Supervisors, 5 Nav. R. 115 (Nav. Sup. Ct. 1987).

• Procedural due process requires notice, an opportunity to be heard and to defend before a tribunal with jurisdiction to hear the matter. Yazzie v. Jumbo, 5 Nav. R. 75 (Nav. Sup. Ct. 1986).

• A defendant must be given adequate notice and an opportunity to be heard on a custody question. Lente v. Notah, 3 Nav. R. 72 (Nav. Ct. App. 1982).

• Procedural due process requires that one be given adequate notice and an opportunity to be heard before one can be deprived of life, liberty or property. Keeswood v. Navajo Tribe, 2 Nav. R. 46 (Nav. Ct. App. 1979).

2. Notice

a) General rule

• No judgment shall be given on any suit unless the defendant has been served notice in accordance with the applicable Court rules of such suit and given ample opportunity to appear in Court in his/her defense. In the Matter of Adult Guardianship of Begay, 8 Nav. R. 896 (W.R. Fam. Ct. 2006).

• Complaint must give notice of possible civil fine before it can be imposed. Manygoats v. Cameron Trading Post, 8 Nav. R. 3 (Nav. Sup. Ct. 2000).

• Due process prohibits holding litigant liable for damages where Navajo law never warned him of this possibility. Descheenie v. Mariano, 6 Nav. R. 26 (Nav. Sup. Ct. 1988).

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• Failure to give party notice of pending adoption proceedings violates the most rudimentary demands of due process of law. Matter of Adoption of Four Children, 4 Nav. R. 9 (Nav. Ct. App. 1983).

b) Diné Bi Beenahaz’áanii

• It comports with both bilagáana legal principles as well as Diné Bi Beenahaz’áanii that decisions made with the input from as many parties as possible are better than those made with input from only one. In the Matter of Adult Guardianship of Begay, 8 Nav. R. 896 (W.R. Fam. Ct. 2006).

• In proceeding throughout this case, we seem to have forgotten that the people involved here are Nohookáá’ Dine’é dealing with other Nohookáá’ Dine’é. When faced with important matters, it is inappropriate to rush to conclusion or to push a decision without explanation and consideration to those involved, Aádóó t’áána’nile’dii é7 dooda. In the Matter of Adult Guardianship of Begay, 8 Nav. R. 896 (W.R. Fam. Ct. 2006).

• When faced with important matters, it is inappropriate to rush to conclusion or to push a decision without explanation and consideration to those involved, Aádóó t’áána’nile’dii é7 dooda. Navajo Nation v. Rodriquez, 8 Nav. R. 604 (Nav. Sup. Ct. 2004).

• Navajo Common Law requires public notice, talking things out, doing things in the open (anáhaazláago) and avoiding “going about in darkness” (being secretive). Violation of those principles violate fundamental Navajo principles of Sa’ah naaghai bik’é hózh=. Judy v. White, 8 Nav. R. 769 (Chin. Dist. Ct. 2002).

• Under Navajo common law, a crier for a naat'aanii would give oral notice to those interested in a problem. When the people arrived to “talk things out,” it would be very unusual for someone to say the discussion cannot proceed because notice was not given in a particular way. As long as a person had fair and sufficient notice of the proceeding, that was all that was required. Yazzie v. Yazzie, 7 Nav. R. 203 (Nav. Sup. Ct. 1996).

• The Navajo people have an established custom of notifying all parties involved in a controversy and allowing them, and other interested parties, an opportunity to present and defend their positions. Bennett v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 161 (Nav. Sup. Ct. 1995).

• The Navajo people have an established custom of notifying all parties involved in a controversy and allowing them, and other interested parties, an opportunity to present and defend their position. Johns v. Leupp Schools, Inc., 7 Nav. R. 120 (Nav. Sup. Ct. 1995).

• The Navajo people have an established custom of notifying all involved parties in a controversy and allowing them, and even other interested parties, an opportunity to present and defend their positions. Begay v. Navajo Nation, 6 Nav. R. 20 (Nav. Sup. Ct. 1988).

• When conflicts arise, involved parties will go to an elder statesman, a medicine man or even a well-respected member of the community, for advice on the problem and to ask that person to speak with the one they see as the cause of the conflict. Begay v. Navajo Nation, 6 Nav. R. 20 (Nav. Sup. Ct. 1988).

• The advisor will warn the accused of the action being contemplated and give notice of the upcoming group gathering. Begay v. Navajo Nation, 6 Nav. R. 20 (Nav. Sup. Ct. 1988).

• At the gathering, all parties, directly or indirectly, will be given the chance to speak, after which a collective decision will be made. Begay v. Navajo Nation, 6 Nav. R. 20 (Nav. Sup. Ct. 1988).

c) No particular notice procedure required

• There is nothing in the concept of procedural due process of law which requires a given procedure, so long as the individual being hailed into court has fair notice of what must be done to obtain a

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hearing before the court, and thus have a meaningful opportunity to be heard. Yazza v. Smith, 8 Nav. R. 191 (Nav. Sup. Ct. 2001).

d) Civil defaults

• There is nothing in the concept of procedural due process of law that requires a separate warning that a default judgment might be entered. Yazza v. Smith, 8 Nav. R. 191 (Nav. Sup. Ct. 2001).

e) Amount of notice

• The amount of notice, in terms of time, should be enough for the person to prepare for hearing. Reservation Bus. Svcs. v. Albert, 7 Nav. R. 123 (Nav. Sup. Ct. 1995).

• Four days notice did not provide sufficient time to prepare for hearing. Removal of Katenay, 6 Nav. R. 81 (Nav. Sup. Ct. 1989).

f) Sufficient notice

• Notice was sufficient, despite lack of service on petitioner’s counsel, where (1) petitioner himself was served through certified mail with a copy of the notice of final hearing showing the date and time of the hearing; (2) petitioner's counsel also admits that petitioner advised him of the hearing date over the telephone; and (3) petitioner's counsel was informed by his office staff of the hearing date. Matter of Custody of S.R.T., 6 Nav. R. 407 (Nav. Sup. Ct. 1991).

• Where attorney received notice of trial, and where party was given 13 days notice of trial, sufficient notice of trial date was given notwithstanding party’s argument that notice did not reach him until after trial date. Yazzie v. Yazzie, 4 Nav. R. 22 (Nav. Ct. App. 1983).

g) May be waived

• Notice can be waived by a written acknowledgement of service or by entry of a written appearance. Matter of Adoption of Four Children, 4 Nav. R. 9 (Nav. Ct. App. 1983).

3. Opportunity to be heard

a) Navajo traditional basis for doctrine

• The high Navajo value of “talking things out” means that those affected by a dispute should be given the opportunity to be heard before a final decision is rendered. Zuni v. Chinle District Court, No. SC-CV-63-06, slip op. (Nav. Sup. Ct. January 12, 2007).

• Our Navajo concept of due process emphasizes the right to he heard consistent with k'e. In the Matter of A.P., 8 Nav. R. 671 (Nav. Sup. Ct. 2005).

• Navajo common law fully recognized the right to be heard at a meaningful time and in a meaningful way. The right was exercised in family, neighborhood and council gatherings where everyone had the opportunity to speak, and decisions were reached through consensus. This tradition is preserved today at the chapter meeting. Plummer v. Plummer, 6 Nav. R. 271 (Nav. Sup. Ct. 1990).

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b) Must be meaningful

• Procedural due process requires that everyone have an opportunity to be heard at a meaningful time and in a meaningful way. Yazza v. Smith, 8 Nav. R. 191 (Nav. Sup. Ct. 2001).

• In this context, “meaningful time” means that there must be adequate notice of a hearing so a party can have an opportunity to contest, negotiate, or otherwise address the action with knowing consent. Yazza v. Smith, 8 Nav. R. 191 (Nav. Sup. Ct. 2001).

• Everyone has a right to be heard at a meaningful time and in a meaningful way. In re Custody of T.M., 8 Nav. R. 78 (Nav. Sup. Ct. 2001).

• The Supreme Court requires that everyone coming before Navajo courts have an opportunity to be heard at a meaningful time and in a meaningful way. Plummer v. Plummer, 6 Nav. R. 271 (Nav. Sup. Ct. 1990).

• Meaningful time means the time schedule set out in the Rules of Civil Procedure. If there are legitimate reasons why this was not enough time, the litigant can get another “meaningful time.” Plummer v. Plummer, 6 Nav. R. 271 (Nav. Sup. Ct. 1990).

• “Meaningful way” means the court should allow a procedure for allowing a litigant to raise any claims they may have. Plummer v. Plummer, 6 Nav. R. 271 (Nav. Sup. Ct. 1990).

• Due process rights may be asserted only when a party can show the denial of the right to an opportunity to be heard in a meaningful way. Plummer v. Plummer, 6 Nav. R. 271 (Nav. Sup. Ct. 1990).

c) No particular procedure required

• There is nothing in the concept of procedural due process of law which requires a given procedure, so long as the individual being hailed into court has fair notice of what must be done to obtain a hearing before the court, and thus have a meaningful opportunity to be heard. Yazza v. Smith, 8 Nav. R. 191 (Nav. Sup. Ct. 2001).

d) Right may be surrendered due to neglect

• One of the most essential aspects of justice is the right to have one's day in court. That right may be denied for litigant negligence. There is no due process right to a hearing. There is only a right to an opportunity for a hearing, which may be surrendered through neglect. Staff Relief v. Polacca, 8 Nav. R. 49 (Nav. Sup. Ct. 2000).

e) Opportunity to respond to motions in litigation

• Due process requires that if the District Court has not given a deadline for the filing of a response, but then dismisses a case before a response is filed, the party appealing the dismissal be allowed to oppose the dismissal on its merits on appeal. Phillips v. Navajo Housing Auth., 8 Nav. R. 751 (Nav. Sup. Ct. 2005).

• 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. Begay v. Navajo Nation, 6 Nav. R. 20 (Nav. Sup. Ct. 1988).

• The underlying purpose of procedural rules is to ensure that notice is given before Court action on a motion. McCabe v. Walters, 5 Nav. R. 43 (Nav. Ct. App. 1985).

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• 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. McCabe v. Walters, 5 Nav. R. 43 (Nav. Ct. App. 1985).

• 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 (Nav. Ct. App. 1979).

f) Reasonable rules regulating when right must be exercised

• Fundamental fairness and the right to be heard do not prevent society from fixing reasonable rules to make certain cases are handled smoothly and efficiently. It is appropriate to set a cutoff date for the presentation of a defense. Wilson v. Wilson, 3 Nav. R. 145 (Nav. Ct. App. 1982).

• It is fundamentally fair to require that a person who does not follow the rules and asks to be excused from following them be required to give the court good reasons why they were not followed. Wilson v. Wilson, 3 Nav. R. 145 (Nav. Ct. App. 1982).

E. Due process rights in specific situations

1. Wage executions

• Procedures in garnishment cases must to be maintained to ensure that everyone interested has an opportunity to be heard. Heredia v. Heredia, 4 Nav. R. 124 (Nav. Ct. App. 1983).

• In the case of wage executions, it is sufficient if there is an opportunity to be heard. In other words, the employer should have a right to object. It is sufficient for the employer to advise the Navajo Police for the purpose of return to the court by the police of for the employer to file an objection with the court and have an opportunity to be heard in that fashion. Heredia v. Heredia, 4 Nav. R. 124 (Nav. Ct. App. 1983).

• Garnishee does not have due process right to be heard before garnishment judgment, since Garnishee’s money shall not be taken by judgment. Foster v. Lee, 3 Nav. R. 203 (W.R. Dist. Ct. 1982).

• Due process does not protect garnishee because it is not being denied property belonging to garnishee. Foster v. Lee, 3 Nav. R. 203 (W.R. Dist. Ct. 1982).

2. Contempt proceedings

• Family Court abused its discretion in scheduling, then ordering Petitioner's continued custody, pending an OSC hearing set beyond the prescribed timelines of 9 N.N.C. § 1663(B)(2). The Family Court's failure to comply with the law is a violation of Petitioner's right to due process. Johnny v. Greyeyes, No. SC-CV-52-08, slip op. (Nav. Sup. Ct. February 27, 2009).

• Family Court’s order to detain Petitioner without notice and an opportunity to be heard before the Family Court violated Petitioner’s right to due process under the Navajo Bill of Rights as informed by the Navajo principle of fundamental fairness. Johnny v. Greyeyes, No. SC-CV-52-08, slip op. (Nav. Sup. Ct. February 27, 2009).

• Family Court violated due process by failing to provide Petitioner with an explanation of the proceedings and an opportunity to be heard at those proceedings prior to issuing its commitment order. Specifically, the Family Court failed to provide an explanation as to what constituted good cause shown and denied Petitioner the opportunity to contest those reasons. He was not given this opportunity though he was jailed downstairs from the Family Court and though he was appearing

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before the District Court in the unrelated matter. Johnny v. Greyeyes, No. SC-CV-52-08, slip op. (Nav. Sup. Ct. February 27, 2009).

• Although written reasons to deny Petitioner’s release are not specifically required, a Judge must clearly and adequately explain the reasons, and such reasons must be available in the record of the case. Johnny v. Greyeyes, No. SC-CV-52-08, slip op. (Nav. Sup. Ct. February 27, 2009).

• It is imperative that Navajo courts comply with due process in contempt proceedings. Matter of Contempt of Mann, 5 Nav. R. 125 (Nav. Sup. Ct. 1987).

• 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. Matter of Contempt of Mann, 5 Nav. R. 125 (Nav. Sup. Ct. 1987).

3. Injunctions

• It is consistent with notions of due process to require a hearing before injunctions issue. Navajo Housing Auth. v. Bluffview Resident Mgt. Corp., 8 Nav. R. 402 (Nav. Sup. Ct. 2003).

4. Children

• Children in Navajo society have the same right to due process as adults. In the Matter of A.P., 8 Nav. R. 671 (Nav. Sup. Ct. 2005).

• Due process applies to juvenile proceedings to the same extent as adult proceedings. Estate of Goldtooth Begay, 7 Nav. R. 29 (Nav. Sup. Ct. 1992).

• The rights set forth in the Navajo Nation Bill of Rights and the Indian Civil Rights Act apply in proceedings arising under the Navajo Children’s Code notwithstanding the civil nature of those proceedings. 6 Nav. R. 560 (W.R. Fam. Ct. 1991).

• Due process applies to juvenile proceedings to the same extent as adult proceedings. Matter of A.W., 6 Nav. R. 38 (Nav. Sup. Ct. 1988).

• The Navajo Children’s Court must respect the customary role of the parents in defending their children’s rights. Therefore, that court must afford notice and an opportunity to present and defend their child’s position to the child’s parent or guardian. Matter of A.W., 6 Nav. R. 38 (Nav. Sup. Ct. 1988).

• Whenever there is to be a change in the custodial arrangements of a child before the courts, due process requires that there be a hearing. The child's rights to due process also require that his or her interests be adequately protected. Navajo Nation ex rel. Div. of Soc. Welfare in interest of Two Minor Children, 4 Nav. R. 57 (Nav. Ct. App. 1983).

5. Adoption proceedings

• Notice to parents in adoption cases is absolutely required in order for a court to have jurisdiction to issue a decree, and if jurisdiction is not obtained through proper notice, then any judgment decree or order is void for all purposes and ineffective from the beginning. Matter of Adoption of Four Children, 4 Nav. R. 9 (Nav. Ct. App. 1983).

6. Translation issues

• Where Navajo is spoken, the non-Navajo speaking party and counsel who would benefit from the translation must make arrangements beforehand. There is no violation of due process from failure

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to translate brief portions of the proceeding. Barton v. Navajo Nation Ethics and Rules Office, 8 Nav. R. 353 (Nav. Sup. Ct. 2003).

7. Civil defaults

• There is nothing in the concept of procedural due process of law that requires a separate warning that a default judgment might be entered. Yazza v. Smith, 8 Nav. R. 191 (Nav. Sup. Ct. 2001).

• It denies due process of law to ask that the Labor Commission deny the basic right to a hearing due to a default without notice to a party. Staff Relief v. Polacca, 8 Nav. R. 49 (Nav. Sup. Ct. 2000).

• Due process of law requires a hearing on a default judgment where damages are not liquidated and stated in a complaint for purposes of a default judgment. Staff Relief v. Polacca, 8 Nav. R. 49 (Nav. Sup. Ct. August 18, 2000).

• Due process of law requires a hearing on a default judgment where damages are not liquidated and stated in a complaint for purposes of a default judgment. Staff Relief v. Polacca, 8 Nav. R. 49 (Nav. Sup. Ct. 2000).

• Due process of law requires a hearing on a default judgment where damages are not liquidated and stated in a complaint for purposes of a default judgment. Loley v. Department of Employment and Training, 7 Nav. R. 406 (Nav. Sup. Ct. 1999).

8. Execution on judgments

• A party has no due process protections from execution on a judgment. The protections were given when they were heard on the merits and were given the opportunity to appeal. Billie v. Nez, 7 Nav. R. 253 (Nav. Sup. Ct. 1996).

• A party is not entitled to notice and an opportunity to be heard prior to issuance of a writ of execution. Billie v. Nez, 7 Nav. R. 253 (Nav. Sup. Ct. 1996).

F. Procedures that satisfy due process

1. Procedures must be meaningful

• Meaningful, post-deprivation process is sufficient to satisfy due process in tax cases. Blaze Const. v. Navajo Tax Comm’n, 7 Nav. R. 435 (Nav. Sup. Ct. 1999).

2. Procedures must provide opportunity to raise arguments

• If the Nation chooses to restrict taxpayer relief to post-deprivation process, the procedures must provide the taxpayer with a fair opportunity to challenge the tax and a remedy for erroneous or unlawful tax collection. Blaze Const. v. Navajo Tax Comm’n, 7 Nav. R. 435 (Nav. Sup. Ct. 1999).

• Basic due process requires giving a party an opportunity to present reasons why a proposed action should not be carried through. Yazzie v. Yazzie, 7 Nav. R. 33 (Nav. Sup. Ct. 1992).

3. Procedures must avoid unreasonable delays

• Delay of justice is injustice. Plummer v. Plummer, 6 Nav. R. 271 (Nav. Sup. Ct. 1990).

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4. Property interests must not be unreasonably put at risk without a showing of the government’s interest in the procedure

• Whether or not a given practice violates procedural due process of law depends upon how official action affects private interests, the risk of an erroneous deprivation of an interest using the procedure and the government’s’ interest in the procedure. Manygoats v. Cameron Trading Post, 8 Nav. R. 3 (Nav. Sup. Ct. 2000).

• The allocation of the burden of proof to employers in Navajo Preference in Employment Act cases is not unfair and does not offend principles of justice that are fundamental to the Navajo People. Manygoats v. Cameron Trading Post, 8 Nav. R. 3 (Nav. Sup. Ct. 2000).

• Standard of “clear and convincing evidence” creates a risk of depriving employer of legitimate interest in terminating an employee for just cause. Manygoats v. Cameron Trading Post, 8 Nav. R. 3 (Nav. Sup. Ct. 2000).

• Since there is no governmental interest in the clear and convincing standard, it violates due process because of the risk to the employer’s rights. Manygoats v. Cameron Trading Post, 8 Nav. R. 3 (Nav. Sup. Ct. 2000).

5. Procedures must permit representation

• Due process entitles parties to representation. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996).

• Due process entitles parties to representation. Estate of Goldtooth Begay, 7 Nav. R. 29 (Nav. Sup. Ct. 1992).

• Due process entitles parties to representation. Boos v. Yazzie, 6 Nav. R. 211 (Nav. Sup. Ct. 1990).

6. Procedures should not deprive due process on technicalities

• There is a right of due process access to the courts, a right that should not be denied on technical grounds. Fort Defiance Housing Corp. v. Lowe, 8 Nav. R. 463 (Nav. Sup. Ct. 2004).

G. Substantive due process rights

1. Right of public access to tribunals

• In emergency situations, the fundamental due process right of access to the courts compels Supreme Court to sit where it is found and issue the writ there. Pelt v. Shiprock Dist. Ct., 8 Nav. R. 111 (Nav. Sup. Ct. 2001).

2. Government must follow its own rules and laws

• Family Court abused its discretion in scheduling, then ordering Petitioner's continued custody, pending an OSC hearing set beyond the prescribed timelines of 9 N.N.C. § 1663(B)(2). The Family Court's failure to comply with the law is a violation of Petitioner's right to due process. Johnny v. Greyeyes, No. SC-CV-52-08, slip op. (Nav. Sup. Ct. February 27, 2009).

• If due process means nothing else, it means that a governmental agency must follow its own rules. Staff Relief v. Polacca, 8 Nav. R. 49 (Nav. Sup. Ct. 2000).

• Failure of a governmental body to follow its own laws violates due process rights. Pioche v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 360 (Nav. Sup. Ct. 1991).

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• 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. Mustach v. Nav. Bd. of Elec. Supervisors, 5 Nav. R. 115 (Nav. Sup. Ct. 1987).

• The board’s selective use of power to examine candidate qualifications for disqualification violates due process. Deswood v. Nav. Bd. of Elec. Supervisors, 1 Nav. R. 306 (Nav. Ct. App. 1978).

3. Rules and statutes must not be ambiguous

• Fundamental fairness prevents the Court from penalizing party for conflict between the court rules and statutes, particularly when a home is at issue. Fort Defiance Housing Corp. v. Allen, 8 Nav. R. 492 (Nav. Sup. Ct. 2004).

• Due process prevents the enforcement of ambiguous statutes affecting personal or property rights. Estate of Goldtooth Begay, 7 Nav. R. 29 (Nav. Sup. Ct. 1992).

• Due process prevents the enforcement of ambiguous statutes affecting personal or property rights. Bennett v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 319 (Nav. Sup. Ct. 1990).

• The factors to be considered in evaluating whether an election statute is ambiguous are: (1) Whether the election statute was one which the ordinary Navajo person, exercising ordinary common sense, could understand; (2) Whether candidates and election officials had to guess at its meaning; and (3) Whether the statute caused those people to differ as to its application. Bennett v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 319 (Nav. Sup. Ct. 1990).

• Where an individual claims rights or privileges which are fundamental, and where even officials administering the law cannot understand the statute, there is a vagueness problem. Bennett v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 319 (Nav. Sup. Ct. 1990).

• Statutes which confer rights grounded upon Navajo liberties must contain ascertainable standards. That is, they must sufficiently describe standards and requirements for the exercise of the right so that the ordinary person will know what they are and be able to satisfy them. Bennett v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 319 (Nav. Sup. Ct. 1990).

• A statute must be certain and clear if it is to satisfy due process. Keeswood v. Navajo Tribe, 1 Nav. R. 362 (Nav. Ct. App. 1978).

H. Curing due process violations

• Where revocation of license initially occurred without notice, it was cured by holding a hearing and giving licensee an opportunity to present a defense. Tafoya v. NNBA, 6 Nav. R. 141 (Nav. Sup. Ct. 1989).

• Where children were returned to party, allegation of due process violation in the taking of the children should be denied as moot. Barber v. Barber, 5 Nav. R. 9 (Nav. Ct. App. 1984).

III. Right to equal protection of the law

A. General statement of the right

• Rather than favoring one person or another, all persons are treated equally under the k’e principle. Benally v. Benally, 8 Nav. R. 796 (Kay. Fam. Ct. 2003).

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• Liberty cannot be taken away unless it is done using a fair process ("due process") and the law must be evenly applied ("equal protection of the law"). Begay v. Navajo Election Admin., 8 Nav. R. 241 (Nav. Sup. Ct. 2002).

• Once an individual obtains the right to enter the Navajo Nation, due process requires that the Navajo Nation extend its protection to all individuals. Staff Relief v. Polacca, 8 Nav. R. 49 (Nav. Sup. Ct. 2000).

• All individuals under the protection of the Navajo Nation have, and shall enjoy, the right of access to remedies at law, whether they are judicial or quasi-judicial. Staff Relief v. Polacca, 8 Nav. R. 49 (Nav. Sup. Ct. 2000).

• Those who provide a public service, including municipalities and corporations, must give equal treatment. A.P.S. v. ONLR, 6 Nav. R. 246 (Nav. Sup. Ct. 1990).

B. Statutory distinctions must be real and not based upon pretext

• Equal protection does not require identify of treatment. It only requires that classification rest on real and not feigned differences. Navajo Nation v. Browneyes, 1 Nav. R. 300 (Nav. Ct. App. 1978).

• 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. Navajo Nation v. Browneyes, 1 Nav. R. 300 (Nav. Ct. App. 1978).

C. Statute may not arbitrarily and capriciously deny benefits to certain classes of people

• The “double bond” requirement in F.E.D. appeals arbitrarily and capriciously denies the ability to prosecute an appeal to certain classes of people. As a result, it violates equal protection and shall be struck down. Navajo Townsite Community Dev. Corp. v. Sorrell, 8 Nav. R. 214 (Nav. Sup. Ct. 2002).

D. Statute may not unequally benefit or burden racial class

1. General rule

• Using a lower burden of proof in delinquency proceedings for non-Indian children as opposed to the burden of proof for Indian children may violate the Equal Protection clause of the Navajo Bill of Rights. In the Matter of A.P., 8 Nav. R. 671 (Nav. Sup. Ct. 2005).

• Under equal protection principles, the Navajo Preference in Employment Act must be extended to any person injured by a violation of its provisions, regardless of race. Staff Relief v. Polacca, 8 Nav. R. 49 (Nav. Sup. Ct. 2000).

• The Navajo Preference in Employment Act must be read to protect all employees within the Navajo Nation because it is a general labor code. Staff Relief v. Polacca, 8 Nav. R. 49 (Nav. Sup. Ct. 2000).

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2. Whether status as “Indian” is a racial distinction

• Differential treatment of Indians does not violate equal protection because it is a political distinction and not a racial distinction. Means v. District Court, 7 Nav. R. 383 (Nav. Sup. Ct. 1999).

3. Council may deny certain benefits to non-Navajos

• The Navajo Nation may, at its option, deny certain benefits or privileges to non-Navajos without offending equal protection. Staff Relief v. Polacca, 8 Nav. R. 49 (Nav. Sup. Ct. 2000).

E. Prohibition against disparate treatment on the basis of gender

• Navajo law recognizes that equity of rights under the law shall not be denied or abridged by the Navajo Nation on account of sex. Help v. Silvers, 4 Nav. R. 46 (Nav. Ct. App. 1983).

• Due to the Navajo Equal Rights guarantee, there can be no presumption that either parent should be favored in custody decisions. Help v. Silvers, 4 Nav. R. 46 (Nav. Ct. App. 1983).

F. Prohibition against unequal application of a general rule or statute

• Unequal application of a general rule can deny a liberty interest. Begay v. Navajo Election Admin., 8 Nav. R. 241 (Nav. Sup. Ct. 2002).

• Where the policy for examining candidate qualifications was applied unevenly, it would be invalidated under the Equal Protection Clause. Begay v. Navajo Election Admin., 8 Nav. R. 241 (Nav. Sup. Ct. 2002).

• 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 evil 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. Deswood v. Nav. Bd. of Elec. Supervisors, 1 Nav. R. 306 (Nav. Ct. App. 1978).

• It is violate of the guarantees of due process and equal protection to enforce a law in a discriminatory fashion. Deswood v. Nav. Bd. of Elec. Supervisors, 1 Nav. R. 306 (Nav. Ct. App. 1978).

• Where an election law was enforced in a discriminatory fashion, it would be set aside on equal protection grounds. Deswood v. Nav. Bd. of Elec. Supervisors, 1 Nav. R. 306 (Nav. Ct. App. 1978).

G. Equal protection violations may be cured by changing the scope of a defective statute

• Court may cure a defective statute which would otherwise deny equal protection by broadening the statute’s coverage. Staff Relief v. Polacca, 8 Nav. R. 49 (Nav. Sup. Ct. 2000).

• Election statutes which limit the liberty to run must be read so as to avoid arbitrary application or selective enforcement. Howard v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 380 (Nav. Sup. Ct. 1991).

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H. Vague statutes

• Unequal application of vague a statute violates equal protection. Begay v. Navajo Election Admin., 8 Nav. R. 241 (Nav. Sup. Ct. 2002).

• Vague statutes can be read and applied consistently so as not to violate equal protection. Begay v. Navajo Election Admin., 8 Nav. R. 241 (Nav. Sup. Ct. 2002).

I. Equal protection challenges

1. Challenge must examine “legislative facts” of disparate treatment

• The usual practice in equal protection challenges is to look for legislative facts to support different treatment of individuals in separate classifications. Means v. District Court, 7 Nav. R. 383 (Nav. Sup. Ct. 1999).

2. Challenge must benefit claimant

• The Court will not review, under equal protection grounds, any alleged conflict between a requirement that a council delegate cannot also serve in a state legislature and an exception which applies only to county commissions and school boards. Whether or not the exception is unlawful, the prohibition on council delegates serving on state legislatures is unlawful, so council delegate could not benefit by challenging lawfulness of the exception. Matter of Grievance of Wagner, No. SC-CV-01-07, slip op. (Nav. Sup. Ct. May 14, 2007).

• Where claimant had assumed tribal relations and hadane (in law) status, claimant not to be considered as a non-member Indian. He therefore had no standing to challenge whether a non-member Indian can be placed in the category of “Indian” for the purpose of a criminal statute. Means v. District Court, 7 Nav. R. 383 (Nav. Sup. Ct. 1999).

IV. Ex post facto legislation and bills of attainder

A. Ex post facto legislation

• Navajo Bill of Rights prohibits the deprivation of any fundamental individual right without the due process of law by ex post facto law. Tso v. NHA, No. SC-CV-20-06, slip op. (Nav. Sup. Ct. December 6, 2007).

• Not all ex post facto legislation is prohibited. Ex post facto legislation intended to correct mistakes, respond to emergencies, or to give effect to a positive beneficial new statute may serve entirely benign and legitimate purposes. Tso v. NHA, No. SC-CV-20-06, slip op. (Nav. Sup. Ct. December 6, 2007).

• Another type of ex post facto legislation is when the Council approves legislation in direct response to this Court's opinion. Such legislation is appropriate, subject to some limitations, except when it seeks to divest individuals or groups of a previously-obtained right. The question to be asked is whether the new provision attaches new legal consequences to events completed before its enactment, or whether the new provisions affect existing contract or property rights. Tso v. NHA, No. SC-CV-20-06, slip op. (Nav. Sup. Ct. December 6, 2007).

• Statutory amendment cannot revoke previously obtained property right. Tso v. NHA, No. SC-CV-20-06, slip op. (Nav. Sup. Ct. December 6, 2007).

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• Ex post facto legislation, laws which deny due process or equal protection of law and bills of attainder are all invalid forms of legislation because the impact negatively on the substantive rights of individuals. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004).

• The presumption against retroactive legislation is founded upon various factors, including the prohibition of ex post facto legislation, the taking of vested property rights without due process of law and bills of attainder. Ramah Navajo Community School v. Navajo Nation, 8 Nav. R. 141 (Nav. Sup. Ct. 2001).

• Legislation which impairs vested property rights cannot stand. Ramah Navajo Community School v. Navajo Nation, 8 Nav. R. 141 (Nav. Sup. Ct. 2001).

B. Bills of attainder

1. Definition

• A “bill of attainder” is the act of a legislature which determines a person’s guilt and imposes punishment without the protections provided by a court of law under criminal statues and fair court procedures. MacDonald, Sr. v. Redhouse, 6 Nav. R. 342 (Nav. Sup. Ct. 1991).

• The essential elements of a bill of attainder are the targeting by the legislature of individual or easily identifiable members of a class, and the punishment of that person or those persons in some manner. MacDonald, Sr. v. Redhouse, 6 Nav. R. 342 (Nav. Sup. Ct. 1991).

• By arguing that an individual or defined group is attained whenever he or it is compelled to bear burdens which the individual or group dislikes, appellant removes the anchor that ties the bill of attainder guarantee to realistic conceptions of classifications and punishment. However expansive the prohibition against bills of attainder, it surely was not intended to serve as a variant of the equal protection doctrine, invalidating every Act of Congress or the States that legislatively burdens some person or groups but not all other plausible individuals. In short, white the Bill of Attainder clause serves as an important “bulwark against tyranny,” it does not do so by limiting Congress to the choice of legislating for the universe, or legislating only benefits, or not legislating at all. Navajo Nation v. MacDonald, 6 Nav. R. 463 (W.R. Dist. Ct. 1989).

• A bill of attainder is unknown in Navajo tradition. In re Certified Questions II, 6 Nav. R. 105 (Nav. Sup. Ct. 1989).

• 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. In re Certified Questions II, 6 Nav. R. 105 (Nav. Sup. Ct. 1989).

• This definition has two elements: (1) an element of punishment must be inflicted by some tribal authority other than tribal judicial authority; and (2) an element of specificity, that is, a singling out of an individual or identifiable group for infliction of punishment. In re Certified Questions II, 6 Nav. R. 105 (Nav. Sup. Ct. 1989).

2. Fundamental right

• The Navajo Bill of Rights prohibits bills of attainder. MacDonald, Sr. v. Redhouse, 6 Nav. R. 342 (Nav. Sup. Ct. 1991).

3. Laws of general application not prohibited

• The legislature may adopt a law stating that a conviction disqualifies a person from holding public office. MacDonald, Sr. v. Redhouse, 6 Nav. R. 342 (Nav. Sup. Ct. 1991).

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4. Test for bill of attainder

• A Bill of Attainder may be evaluated by three tests (1) Historical, which looks at what was legislative punishment in England. These were imprisonment, banishment, ant the punitive confiscation of property by the sovereign. The American experience added prohibition of work. (2) Functional, which examines the law in dispute to determine whether it reasonably can be said to further non-punitive legislative purposes. If there are public interests or purposes served by the act it is not designed to inflict punishment. (3) Motivational, which requires an examination of the legislative record to see if there is an intent to punish. Navajo Nation v. MacDonald, 6 Nav. R. 463 (W.R. Dist. Ct. 1989).

• A Bill of Attainder may be evaluated by three tests (1) Historical, which looks at what was legislative punishment in England. These were imprisonment, banishment, ant the punitive confiscation of property by the sovereign. The American experience added prohibition of work. (2) Functional, which examines the law in dispute to determine whether it reasonably can be said to further nonpunitive legislative purposes. If there are public interests or purposes served by the act it is not designed to inflict punishment. (3) Motivational, which requires an examination of the legislative record to see if there is an intent to punish. In re Certified Questions II, 6 Nav. R. 105 (Nav. Sup. Ct. 1989).

V. Right of free speech, press and assembly

A. Right of free press

• The Navajo Bill of Rights and the Indian Civil Rights Act guarantee the right of the press to be free from governmental intervention. This includes protecting the press from an order directing them to print that which reasons tell them not to publish. Hosteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997).

• The Court cannot stress enough the sacredness of free speech and assembly nor the rights protected under the Navajo Bills of Rights, the 1968 Indian Civil Rights Act 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 these rights in the legitimate interest of protecting and insuring the public peace, property fights and functions of government when these interests of government are threatened. Hosteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997).

• The Navajo Bill of Rights and the Indian Civil Rights Act incorporate the requirement of actual malice for public officials. Hosteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997).

• 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. Chavez v. Tome, 5 Nav. R. 183 (1987).

• The Navajo Bill of Rights and the Indian Civil Rights Act guarantees the right of the press to be free of governmental intervention. Chavez v. Tome, 5 Nav. R. 183 (1987).

• 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. Chavez v. Tome, 5 Nav. R. 183 (1987).

• A responsible press is desirable, but it cannot be legislated by the Navajo Tribal Council or mandated by the Navajo courts. Chavez v. Tome, 5 Nav. R. 183 (1987).

• The press is not free to print libelous material; because the government does have a legitimate interest in protecting an individual's good name. Chavez v. Tome, 5 Nav. R. 183 (1987).

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• Financial liability for libel will serve as a deterrent and help assure that the press acts in a responsible manner. Chavez v. Tome, 5 Nav. R. 183 (1987).

• The decision to print a retraction rests with the publisher, and the court is prohibited by the Navajo Bill of Rights and the Indian Civil Rights Act from ordering a retraction. Chavez v. Tome, 5 Nav. R. 183 (1987).

B. Right of free speech

• Navajos have a right to speak for themselves. In re Custody of T.M., 8 Nav. R. 78 (Nav. Sup. Ct. 2001).

• Free speech is sacred to Navajos. Hosteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997). • In Navajo society, communication is essential to life, it is the basis of k’e relationships and

respect. Hosteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997). • A person has a fundamental right to express his or her mind by way of the spoken word and/or

actions. Navajo Nation v. Crockett, 7 Nav. R. 237 (Nav. Sup. Ct. 1996). • There are Navajo traditional limits on free speech. Sometimes, a person is prohibited from saying

something. Some statements of reciting oral traditions are prohibited during specific times of the year. Navajo Nation v. Crockett, 7 Nav. R. 237 (Nav. Sup. Ct. 1996).

C. Right of free assembly

• Free assembly is sacred to Navajos. Hosteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997). • The right of assembly must be given the most liberal and comprehensive construction to protect

the people’s First Amendment rights. Keeswood v. Navajo Tribe, 1 Nav. R. 362 (Nav. Ct. App. 1978).

D. Government interests that justify restriction of right to free speech, press or assembly

• The sovereign may restrict these rights in the legitimate interests of protecting and insuring the public peace, property rights and functions of government when these interests of government are threatened. Hosteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997).

VI. Freedom to exercise religious beliefs

A. Fundamental right

• The Indian Civil Rights Act prohibits interference with the exercise of religion. Navajo Nation v. Haag, 7 Nav. R. 443 (Chin. Dist. Ct. 1992).

• The government may not regulate any citizen’s religious beliefs. Navajo Nation v. Haag, 7 Nav. R. 443 (Chin. Dist. Ct. 1992).

B. Neutral laws of general applicability

• The right of free exercise of religion does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes). Navajo Nation v. Haag, 7 Nav. R. 443 (Chin. Dist. Ct. 1992).

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C. Freedom of religion in court proceedings

• The guarantee of religious liberty prevents courts from adjudicating questions on interpretations of religious doctrine. Navajo Nation v. Haag, 7 Nav. R. 443 (Chin. Dist. Ct. 1992).

• A court may not inquire into the truth or falsity of religious beliefs, but a court may ask whether a proponent of a religion holds his beliefs honestly and good faith. Navajo Nation v. Haag, 7 Nav. R. 443 (Chin. Dist. Ct. 1992).

VII. Other fundamental rights

A. Right to marry

• The right to marry is a fundamental right. A.P.S. v. ONLR, 6 Nav. R. 246 (Nav. Sup. Ct. 1990).

B. Right to just compensation for governmental taking of property

• Pro bono appointments do not involve the “taking” of an attorney's services because of the general obligation of attorneys to serve at the direction of the courts. Navajo Nation v. MacDonald, 6 Nav. R. 222 (Nav. Sup. Ct. 1990).

• Appointment of attorney to represent, pro bono, indigent party is not a “taking” for which the attorney is entitled to just compensation, because the practice of law is a privilege not a right. Boos v. Yazzie, 6 Nav. R. 211 (Nav. Sup. Ct. 1990).

• Customary land usage is a property right for which the owner deserves compensation if taken by the sovereign. Matter of Estate of Wauneka, 5 Nav. R. 79 (Nav. Sup. Ct. 1986).

• Just compensation must be provided when the government takes private property without the owner’s consent. Dennison v. Tucson Gas & Electric Co., 1 Nav. R. 95 (Nav. Ct. App. 1974).

C. Right to be free from involuntary servitude

• Appointing counsel to the position of prosecutor is not involuntary servitude (slavery) in violation of the Thirteenth Amendment. Matter of Appointment of Tuba City District Prosecutor, 1 Nav. R. 168 (Nav. Ct. App. 1977).