Navajo Nation Supreme Court

Navajo Tribal Court Suit against Gallup Diocese: Interesting, Even Strange Supreme Court Implications

Matthew L.M. Fletcher

As we noted a few weeks ago, the Navajo Nation Supreme Court remanded a suit against the Gallup Diocese. The suit apparently alleges sexual abuse against Catholic priests and others against the plaintiff, a John Doe. The case does not have national importance yet, but it one day could.

Consider a class action suit brought in tribal court against any number of Catholic dioceses around the nation. We could have them here in Michigan in relation to the Holy Childhood school abuses, which are extensive and extensively documented.

Most outsiders would say why not sue in state or federal court, but a significant portion of the claimed abuses would have happened within reservation boundaries, making tribal court jurisdiction an issue. If the torts alleged occurred on church property, then the Montana case becomes the “pathmarking” doctrine. Since the church probably never consented to tribal jurisdiction, what remains is Montana 2 — the so-called health, welfare, political integrity, and economic security exception to the general rule that tribes cannot assert jurisdiction over nonmembers.

A class action successfully proving intergenerational trauma and multiple wrongful deaths could arguably meet the Montana 2 criteria, even in a federal circuit court.

So that raises the specter of Supreme Court review. Seven of the nine Justices, at least right now, are Catholic. Will they have to recuse themselves? Actually, they aren’t required to at all, but will they? I would guess no. It’s one thing to persuade the Court to affirm tribal jurisdiction, but another to persuade the Court to affirm jurisdiction over a Catholic diocese.

I always thought the commentary about the fact that there are so many Catholics on the Court was kind of silly, until I started thinking about this case.

Interesting, and strange.

Navajo Judicial Branch Press Release Opposing Changes to Judicial Qualifications

Matthew L.M. Fletcher

Here is the press release: 92311_ProposaltoAmendQualificationsofNavajoNationJusticeMayUn.

And here are links to other responses to the proposal, including comments by Dr. Raymond Austin, former Navajo Supreme Court Justice, from the judicial branch website:

September 23, 2011: The Judicial Branch has issued its comments on proposed amendments to the qualifications of Navajo Nation Supreme Court justices at 7 N.N.C. § 354 (B) that were submitted last week to the Navajo Nation Council legislative process through Legislation No. 0388-11.  Chief Justice Yazzie and branch Human Resources Director Darren Tungovia commented separately, expressing concerns about the candidate pool and the consequences on Supreme Court’s ability to continue to be a leader in tribal court adjudication rather than in “a borrowed state or federal system in which our culture is merely anthropological speculation.”  Late Friday, Asso. Justice Emeritus Raymond Austin also submitted comments.  See press release.

 

Navajo Nation Supreme Court Remands Sexual Abuse Claims against Catholic Church to Tribal District Court

Matthew L.M. Fletcher1 Comment

Here is the opinion in John Doe BF v. Diocese of Gallup.

From the court’s summary:

In this appeal of a district court’s order of dismissal in a personal injury action due to late filing, the Supreme Court has reversed the dismissal.  The case concerns allegations of child sex abuse on a Navajo teenager by a Catholic priest based on events that occurred almost twenty years ago. The district court did not find that the statutory conditions that would allow late filing were met.  However, the Supreme Court determined that the district court impermissibly required argument and witnesses at a status conference, and furthermore, applied the wrong standard.  The matter is remanded for further proceedings, including detailed findings on jurisdiction over the non-member defendants.

The court’s commentary on the complexity of adjudicating nonmember rights is worth reading, and demonstrates why the Navajo judicial system is a leader in tribal court adjudication:

The federal courts are a separate jurisdiction with very limited civil authority in Indian Country. Notwithstanding this limitation, federal court rulings profoundly affect tribal civil authority involving non-members in ways that have become “erratic and standardless.” Thomas P. Schlosser, Tribal Jurisdiction Over Non-Members, 37 Tulsa L. Rev. 573 (2001-2002). Some federal courts have even crossed jurisdictional lines and have begun treating our tribal courts and administrative agencies like subordinate courts rather than a separate sovereign adjudicative system. See, e.g., Amended Judgment in Red Mesa Unified School District et al v. Sara Yellowhair, et al, issued by the United States District Court for the District of Arizona, No. CY-09-807I-PCT-PGR (D. Ariz January 6, 2011) (voiding tribal court orders and enjoining tribal court action in a consolidated employment-related matter in which the protections of the Navajo Nation Preference in Employment Act were found to be inapplicable to all employees of Arizona state-funded schools located on the reservation). We are an Indian sovereign judicial  system, and as such there is no statutory mandate for our courts to apply the decisions of federal courts within our jurisdiction. However, we do so in the area of our civil jurisdiction over non-members out of the need to participate in, essentially, a political relationship. The jurisdictional barriers created by the federal courts, unilaterally imposed without consulting Congress or the tribes, must be practically resolved through engagement.

Our post on the Yellowhair case is here.

Yale Law School to Host Navajo Nation Supreme Court Argument

Matthew L.M. Fletcher

Here, via How Appealing:

FARMINGTON — The latest chapter in the legal saga of the Shiprock Home for Women and Children will take place in front of an Ivy League audience.

Oral arguments in the appeal of a Shiprock judge’s February decision supporting an injunction against the home will be heard at Yale Law School.

The Navajo Supreme Court will travel in November to New Haven, Conn., where the case will play out in front of an audience of law school students.

The ruling likely will come after the parties return home, said Jim Zion, an Albuquerque-based defense attorney who is handling the defendants’ case pro bono.

“The actual decision will be made in Window Rock,” Zion said. “I suspect the arguments will be very interesting at Yale. I’m looking forward to it.”

The cross-country trip is not unusual for law schools, Zion said. Schools occasionally invite various courts from around the country to visit campus, where students host the legal proceedings.

“Usually it’s Indian law students who ask the administration to ask the Navajo court to come,” Zion said. “The institution pays for us to go, and we do.”

This is Yale’s first time to host the Navajo Supreme Court, Yale spokeswoman Kathy Colello said.

“The visit is the result of student interest, particularly a request by our Native American Law Students Association,” she said.

Yale approached the Navajo high court and offered to cover travel and lodging for counsel to move the arguments to the prestigious law school.

Navajo Supreme Court Issues Opinion on Paternity, DNA Testing, and Navajo Common Law

Matthew L.M. Fletcher1 Comment

Here is the opinion in In re the Matter of the Guardianship of T.S.E.J.

 

Here is the court’s syllabus:

In this matter in which a putative father appealed the family court’s order for genetic testing and requirement that the parties reimburse the expenses of a guardian ad litem, the Court reverses the family court and provides a summary of the Navajo Nation paternity, custody and visitation law.

An excerpt:

It is in the best interest of children to have knowledge of their father and to be able to point to him as someone who desired to be their father without needless raising of questions of paternity that serve only to shake the stability of the family. Our courts must ensure a child does not consider himself or herself wótashke’ (fatherless child). In this case, where only one man has stood up to be the children’s father and, furthermore, has been taken to be the father by the mother and family, the Court has no business investigating further if the result would be to render that child fatherless.

Navajo Supreme Court Issues Opinion on Informal Methods of Deciding Divorce Cases

Matthew L.M. Fletcher

Here is the opinion in Manning v. Abeita.

The court’s summary:

In this appeal of a divorce action in which the husband objected to the judge using informal methods in deciding his divorce, the Court sets forth the premises under which informal methods are permissible under the Rules of Civil Procedure, and affirms in part, reverses in part, and remands on limited issues.

An excerpt from the opinion, which largely deals with when trial judges may dispense with the formal rules of civil procedure:

We have rule-based and traditional Diné dispute resolution methods in our courts. We encourage the use of traditional methods, especially in family matters. The family is the core of Navajo society. Davis v. Means, 7 Nav. R. 100, 103 (Nav. Sup. Ct. 1994). We have stated: “The eternal fire burning in the center of the hogan is testament that the family is central to Navajo culture and will remain so in perpetuity.” Id. However, in today’s society, a court session cannot be turned into a peacemaking session without warning and consent.

In this case, the trial judge dispensed with formal rules and convened a single Final Hearing, followed by a brief supplemental hearing, to collect information, seek stipulations, and dispose of all non-stipulated issues in regard to the parties’ divorce. Essentially, the judge failed to follow a properly structured process in the use of two very different methods of dispute resolution. In our dual-culture courts, our rules require there must be observed the two stages:
(1) the pretrial conference wherein settlement is facilitated and horizontal decision-making is encouraged using informal methods, including Diné traditional methods; and (2) the trial phase.

The Navajo Rules of Civil Procedure do not provide judges the authority to truncate proceedings in the manner shown in this case, especially when a matter involves pro se parties. Because the judge did not use efforts to distinguish the two stages, we find that this was his error, arising to an abuse of discretion. We hold that a court must maintain the distinction between pretrial and trial hearings. If courts maintain this distinction, then the use of traditional methods in our court system will work.

Navajo Nation Reverses Aggravated Battery Conviction

Matthew L.M. Fletcher

Here is the opinion in John v. Navajo Nation.

An excerpt:

In this case, the Nation has not filed a brief nor otherwise indicated its interest in participating in the appeal. Previously in Navajo Nation v. Morgan, 8 Nav. R. 732 (Nav.Sup.Ct.2005), we addressed a similar situation in which the Nation, as here, did not file a brief. In Morgan, we stressed “to the Office of the Prosecutor and the Attorney General the importance of participation in appeals, as their responsibilities to the Navajo people should mandate them to take an interest in each case before this Court.” Id. at 736. The Court takes judicial notice that underlying the dispute resolution process of the Diné, there is this expectation: Diné t’áá hat’íshįį yéego bik’í hojiz’ahgo doo éi t’óó bijilkáa’da doołeeł, háálá bila‘ashdla‘ii éi yíní bíighago dilzin dóó baahasti’; doo éi t’óó naaki nilįigo bił hwiizh dooł’aałda. If one brings forth a serious allegation, the accuser is expected to participate in the resolution of the accusation because the truth of the allegation must be determined out of respect and protection of the individual.

Navajo Supreme Court Accepts Dismissal of Tribal Court Suit against Public School; Criticizes Federal Court over Jurisdiction Opinion

Matthew L.M. Fletcher1 Comment

Here is the opinion in Hasgood v. Cedar Unified School District.

The court’s syllabus:

 The Court grants the parties’ stipulated dismissal but strongly questions the basis of a federal court’s decision in a local school board personnel matter, which lends itself to be read as excluding all state-run schools on the reservation from tribal regulatory and adjudicative jurisdiction.

Navajo Nation Supreme Court Issues Omnibus Order in Massive DiscretionaryFund Fraud Cases

Matthew L.M. Fletcher

Here is the opinion in Acothley v. Perry. (H/T Pechanga)

As you may recall, the Navajo Special Prosecutor filed more than 250 criminal cases in the Window Rock District Court a few months back, creating a logjam of complex criminal cases (our post here).

The court’s syllabus:

Acothley et al v. Perry, Opinion and Omnibus Order and Writ of Superintending Control. In this application for a Writ of Superintending Control, the Court denies Petitioners’ request for dismissal and disqualification of Judge Carol Perry and Judge T. J. Holgate of the Window Rock District Court and further, issues a writ requiring consolidation of co-conspirators into joint trials in the Discretionary Fund Cases.  (March 1, 2011)

Navajo Supreme Court Reverses $30K Emotional Distress Judgment against Tribal Police Dept.

Matthew L.M. Fletcher

Here is the opinion in Wauneka v. Navajo Dept. of Law Enforcement.

An excerpt:

This  case concems  an appeal  by  the Navajo Department of  Law Enforcement,  of  a May 26, 2009 Final Damages Order of  the Navajo Nation Labor Commission (Commission) in which the  Commission  awarded  a  police  officer  back  pay,  attorney’s  fees,  restoration  of  leave  hours; emotional  damages;  and  further,  imposed  civil  fines.

* * *

Based  on  the  above,  the  Court  REVERSES  the  Commission’s  award  of   $30,000  in emotional  damages,  and  AFFIRMS  the  Commission’s  imposition  of  $500  in  civil  fines.  The Court  further  LIFTS  the  stay  in  the  Window  Rock  District  Court  for  further  disposition consistent with this opinion.