By Justice Raymond D. Austin (ret.) NNBA Annual Conference June 10-11, 2010

1. Navajo Common LawBased on book: Navajo Courts and Navajo Common Law, A Tradition of Tribal Self-Governance (Univ. of Minnesota Press, 2009) By Justice Raymond D. Austin (ret.) NNBA Annual Conference June 10-11, 2010

2. I. Why use Navajo customary law (besides deciding legal issues)? Navajo customary law: 1. gives Navajo Nation its unique identity among nations of the world 2. is Navajo Nation’s links to its past and future and to all relatives in creation 3. fosters Navajo nation-building and Navajo sovereignty 4. means “doing sovereignty” the Navajo way 5. forces Navajos to “think like Diné”; like ancestors 6. ensures preservation and transmission of culture, language, spirituality and identity across generations 7. conforms with United Nations Declarations on the Rights of Indigenous Peoples (adopted Sept. 13, 2007) – rights to political status, self-determination, self-government, identity, culture, language, spirituality, distinct political, legal, economic social and cultural institutions, etc.

3. II. What is “Diné bibee haz’aanii”? 1. Modern description: statutes, administrative regulations, court-made law & Navajo common law (values, norms, customs & traditions) 2. Traditional description: a. broad meaning – those codified as “the fundamental laws of the Diné (i.e., traditional law; customary law; natural law; common law)  terminology may cause confusion b. customary law – values, norms, customs, & traditions that are transmitted orally across generations and which produce and maintain right relations, right relationships, and desirable outcomes in Navajo society 3. Core description: bee haz’aanii literally translated  “by it which a certain state/condition exists” a. “it” refers to norms, customs etc. that produce or maintain that state b. “state/condition” refers to hozho, k’e or k’ei

4. III. Diné problem-solving models A. General model: Hozho (harmony)  Hochxo (disharmony)  Hozho (harmony) B. Ceremony model: Hozho (harmony)  Hochzo (disharmony  corrected by ceremony)  Hozho (harmony restored) C. Navajo jurisprudence model: Hozho (harmony)  Anahoti’ (problem/issue  caused by Nayee [disrupter])  Navajo common law applied w/in context of the three foundational doctrines (hozho, k’e, k’ei)  Hozho (harmony/relationships restored)

5. IV. Choice of law, 7 NNC § 204(A) Order of preference: 1. statutes and regulations a. use customary laws to guide interpretation of statutes & regulations 2. customary laws in absence of statutes & regulations (e.g., probate, customary land-usage) 3. federal laws or regulations when applicable (note: fed case-law might be first preference to determine jurisdiction – Montana analysis) 4. laws of state where dispute arose (Az, NM, Utah) (note: might lead to different rulings though facts similar) **See Estate of Belone, 5 Nav. R. 161 (Nav. Sup. Ct. 1987), for procedures on incorporating customary law into litigation; People knowledgeable (tribal encyclopedia) on customs can aid court on customary law questions

6. V. Fundamental Laws, 1 NNN §§ 201-206 1. What are fundamental laws of Diné? Immutable laws given by Diyin (Creator), Diyin Diné (Holy Beings), and Nahasdzaa/Yadilhil (Mother Earth & Father Universe) to Navajo people and Navajo common law 2. Reasons for codification: a. recognize/acknowledge FLs exist; FLs protect Diné & Diné Life Way b. FLs impose duties on leaders to protect, preserve, enhance DLW and Diné sovereignty c. generate interest among Diné to learn FLs 3. Council findings (FLs codified are summarized): a. FLs do not violate religious freedoms b. Gov’t can observe FLs in public functions and public buildings c. NN leaders must learn, use and educate on FLs d. FLs are to be used to interpret statutes

7. VI. Three foundational doctrines (in FLs) 1. Hozho – condition where everything is in its proper place and functioning in harmonious relationship to [“and with”] everything else. G. Witherspoon, Navajo Kinship & Marriage. Glossed as harmony, balance, peace. Hozho is essential to Diné Life Way. 2. K’e – glossed as group solidarity through positive values. Values, including love, kindness, peacefulness, friendliness, cooperation etc., that help maintain kinship network and right relationships among people. Serves as “glue” that maintains interconnectedness, interdependence, and universal relationships. a. examples of k’e in Navajo society: people cooperating on a major ceremony that may take several days; people addressing each other by kinship terms, esp. during peacemaking session. 3. K’ei – clan system; identifies relatives through 1) 4 basic clans, and 2) through related clans (e.g., clan A related to clan X because they split from clan W); regulates domestic relations

8. VII. Application Apache v. Republic Life Ins. Co., 3 Nav. R. 250 (W. Rock D. Ct. 1982): H named W as beneficiary on his life insurance policy. W gets default divorce w/o claiming interest in policy. H dies after divorce w/o changing beneficiary designation. H’s mother claims policy proceeds. Issue: Who gets insurance $$? Mother: Use Navajo common law - divorce cuts all rights of former spouses to each other’s property; I should get insurance $$ Ex-wife: Use Az contract law – Insurance policy is contract which must be enforced as written; I get $$ as named beneficiary 1. NCL v. State law: Ct uses choice of law statute – no statutory law but NCL available; Ct takes judicial notice of NCL 2. Ct relies on k’ei doctrine: matrilocal residence upon marriage; upon divorce, W has choice over marital property (W can keep all; or divide according to her preference). Why? Navajos matrilineal 3. Finality doctrine: divorce cuts all ties of couple; purpose of doctrine - restore parties/families to hozho 4. W did not claim policy so she left it behind – mother gets the $$

9. Ahéhee’!!