*University of New Mexico 2007 Law Graduate

¹ This case note takes into account opinions of the Supreme Court of the Navajo Nation published in the online VersusLaw database (http://www.versuslaw.com) as of January 18, 2007. The seed for this paper was planted by the October 21, 2005 presentations of Navajo Nation Supreme Court Justice Lorene Ferguson and Navajo Nation Supreme Court Clerk Paul Spruhan, discussing, respectively, the Fundamental Laws of the Diné and cases decided in 2004 and 2005, at a seminar in Albuquerque, New Mexico entitled “Crossroads of Navajo Law: Tradition & Innovation.” This paper has also benefited from the instruction of Chief Justice Emeritus Robert Yazzie over two semesters at the University of New Mexico School of Law during which the author was fortunate to be his pupil and research assistant. The author also acknowledges fruitful discussions with Ernestine Tsinigine, University of New Mexico School of Law Class of 2007, who completed an externship with the Supreme Court of the Navajo Nation in 2005.

² Navajo Nation v. Rodriguez, No. SC-CR-03-04, 2004.NANN.0000014, ¶ 13 (Navajo Sup. Ct. Dec. 16, 2004) (VersusLaw).

³ Id.

⁴ Id.

⁵ Id.

⁶ Id. See Miranda v. United States, 384 U.S. 436 (1966).

⁷ Rodriguez, ¶ 13 (VersusLaw).

⁸ Id.

⁹ Id. ¶ 53 n.6.

¹⁰ Id. ¶ 14.

¹¹ Id.

¹² Rodriguez, ¶¶ 14-15. Mr. Rodriguez’s first appeal was remanded to the District Court for entry of findings of fact and conclusions of law. Id.¶ 15. Mr. Rodriguez subsequently filed the appeal that is the subject of this case note. See id.

¹³ Id. ¶ 16.

¹⁴ Id.

¹⁵ Rodriguez ¶ 21.

¹⁶ Id. ¶ 23.

¹⁷ Id. ¶¶ 26-28.

¹⁸ Id. ¶¶ 30-41.

¹⁹ Id. ¶¶ 26-27.

²⁰ Rodriguez, ¶ 27.

²¹ Id. ¶ 28. 1 N.N.C. § 8 provides that criminal defendants cannot be “compelled to be a witness against themselves.” Id. See id., ¶ 26 (VersusLaw). The Navajo Nation did not dispute that Investigator Snyder threatened Mr. Rodriguez by suggesting that he might face lengthy incarceration and a large fine before he signed the advice of rights form. Id. ¶ 28. The Navajo Nation appears to have argued that Investigator Snyder’s conduct constituted a “degree of coercion,” without defining “degree.” Id.

²² Rodriguez, ¶ 30.

²³ Id. ¶ 41.

²⁴ Id. ¶¶ 31-37.

²⁵ Id.

²⁶ Id. ¶¶ 31-32.

²⁷ Id. ¶ 31. See Navajo Nation Council Res. No. CN-69-02 (November 1, 2002) (amending Title 1 of the Navajo Nation Code to recognize the Fundamental Laws of the Diné).

²⁸ Rodriguez, ¶ 38 (VersusLaw).

²⁹ Id. ¶¶ 38-39.

³⁰ Id. ¶ 39. The Court’s guidance for proper use of advice of rights forms and conduct of police interviews will be discussed further in section IV (c), below.

³¹ Id. ¶ 40. See also id. ¶ 34.

³² Id. ¶¶ 26, 30, 40.

³³ Id. ¶¶ 43-44.

³⁴ Miranda v. United States, 384 U.S. 436, 439 (1966).

³⁵ Navajo Nation Council Res. No. CN-69-02, supra note 27. See generally Robert Yazzie, Air, Light/Fire, Water and Earth/Pollen: Sacred Elements That Sustain Life, 18 J. ENVTL. L. & LITIG. 191 (2003); Kenneth Bobroff, Diné Bi Beenahaz’áanii: Codifying Indigenous Consuetudinary Law in the 21st Century, 5 TRIBAL L.J. (2004/2005), http://tlj.unm.edu/articles/volume_5/_dine_bi_beenahazaanii__codifying_indigenous_consuetudinary_law_in_the_21st_century/index.php. Bobroff defines “consuetudinary law” as “the unwritten law of custom.” Id. § I, note 2. “Consuetudinary law” has also been defined as “[a]ncient customary law that is based on an oral tradition.” BLACK’S LAW DICTIONARY 900 (8th ed. 2004). Res. No. CN-69-02 grew out of the Navajo Common Law Project, commissioned in 1999 by Edward T. Begay, Speaker of the Navajo Nation Council. See Bobroff § IV; Henry Barber, Navajo Common Law Project: Researching Our Original Diné Laws 6 (Oct. 6, 2002) (unpublished manuscript prepared by the Office of the Speaker, Navajo Nation Council) (on file with the University of New Mexico School of Law Library).

³⁶ Bobroff, supra note 35, § II. See also id. §§ III, IV. According to the Fundamental Laws, “these laws have not only provided sanctuary for the Diné Life Way but [have] guided, sustained and protected the Diné as they journeyed upon and off the sacred lands upon which they were placed since time immemorial.” Res. No. CN-69-02, supra note 27, ¶ 2. See Bobroff, supra note 35, § V.

³⁷ Bobroff, supra note 35, § V(B). “The leader(s) of the judicial branch (Alááaji’ Haskéé’ji Naat’ááh) shall uphold the values and principles of Diné bi beenahaz’áanii in the practice of peace making, obedience, discipline, punishment, interpreting laws and rendering decisions and judgments[.]” Res. CN-69-02, supra note 27, Exhibit “A,”§ 3(E).

³⁸ Res. CN-69-02, supra note 27, ¶ 9. See Bobroff, supra note 35, § VI.

³⁹ Res. CN-69-02, supra note 27, ¶ 8. See Bobroff, supra note 35, § VI. The Navajo Nation judiciary has a long history of applying and developing Navajo Common Law that predates the adoption of the Fundamental Laws. See, e.g., id. § II; Bennett v. Navajo Board of Election Supervisors, No. A-CV-26-90, 1990.NANN.0000016, ¶ 42 (Navajo Sup. Ct. Dec. 12, 1990) (VersusLaw) (“When the Navajo Nation and the United States concluded a treaty in 1868 to establish government-to-government relations, the Navajo People reserved their rights to self-government and to use their customs and traditions as law. . . . To the extent that those customs and traditions are fundamental and basic to Navajo life and society, they are higher law.”). See also Paul Spruhan, Case Note: Means v. District Court of the Chinle Judicial District and the Hadane Doctrine in Navajo Criminal Law, 1 TRIBAL L.J. (2000/2001), http://tlj.unm.edu/articles/volume_1/spruhan/index.php (non-member Indian married to Navajo is hadane or “in-law” under Navajo law and by virtue of such marriage consents to Navajo criminal jurisdiction).

⁴⁰ Tso v. Navajo Hous. Auth., No. SC-CV-10-02, 2004.NANN.0000013, ¶ 41 n.1 (Navajo Sup. Ct. Aug. 26, 2004) (VersusLaw) (declining to apply Navajo Common Law where language of Navajo Nation Code is clear and unambiguous).

⁴¹ Id.

⁴² Navajo Nation v. Rodriguez, No. SC-CR-03-04, 2004.NANN.0000014, ¶ 24 (Navajo Sup. Ct. Dec. 16, 2004) (VersusLaw).

⁴³ Id.

⁴⁴ Id. ¶ 31.

⁴⁵ Id.

⁴⁶ Id.

⁴⁷ Id. The Court noted the agreement of federal courts with this approach: “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.” Rodriguez ¶ 31.

⁴⁸ Id. ¶ 32.

⁴⁹ Id.

⁵⁰ Id.

⁵¹ Id.

⁵² Id., ¶¶ 26, 35-38 (VersusLaw).

⁵³ Miranda v. United States, 384 U.S. 436, 439, 444-445 (1966). The Fifth Amendment states, in pertinent part: “No person . . . shall be compelled in any criminal case to be a witness against himself[.]” U.S. CONST. amend. V.

⁵⁴ Miranda, 384 U.S. at 444.

⁵⁵ Id. The United States Supreme Court defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id.

⁵⁶ Rodriguez, ¶¶ 35-37 (VersusLaw).

⁵⁷ Miranda, 384 U.S. at 442-443 (quoting Brown v. Walker, 161 U.S. 591, 596-597 (1896)). The Miranda court stated that the crucial event in the development of the right against self-incrimination came in the 1637 trial of John Lilburn, who refused to take the Star Chamber Oath, which would have required him to answer any and all questions put to him. 384 U.S. at 458-459. Lilburn claimed that it was a fundamental right that one not be compelled to testify against oneself. Id. at 459. Parliament subsequently abolished the Star Chamber, and the right against self-incrimination gained popular support. Id. “These sentiments worked their way over to the Colonies and were implanted after great struggle into the Bill of Rights.” Id.

⁵⁸ Id. at 460 (internal citations omitted).

⁵⁹ Miranda’s case was the lead case among four consolidated cases that the Miranda court decided. See id. at 491-499.

⁶⁰ Id. at 491.

⁶¹ Id.

⁶² Id. at 491-92.

⁶³ Miranda at 491.

⁶⁴ Id. at 492 n.66.

⁶⁵ Id. at 492.

⁶⁶ Id. at 492 n.67.

⁶⁷ Id. at 492.

⁶⁸ The United States Supreme Court recently declined an opportunity to overrule or scale back Miranda, choosing instead to reaffirm it. See Dickerson v. United States, 530 U.S. 428 (2000) (affirming Miranda warnings as constitutionally based protection not susceptible to legislative abolition). But cf. United States v. Patane, 542 U.S. 630 (2004) (explaining Miranda and Dickerson) (failure to give Miranda warning does not require suppression of the physical fruits of a suspect’s unwarned but voluntary statements).

⁶⁹ Miranda, 384 U.S. at 465 (discussing Escobedo v. State of Illinois, 378 U.S. 478 (1964)).

⁷⁰ Miranda, 384 U.S. at 492.

⁷¹ Navajo Nation v. Rodriguez, No. SC-CR-03-04, 2004.NANN.0000014, ¶ 26 (Navajo Sup. Ct. Dec. 16, 2004) (VersusLaw).

⁷² 25 U.S.C. § 1302(4) (West, Westlaw through November 22, 2005).

⁷³ See Rodriguez, ¶ 26 (VersusLaw); id. ¶ 27 (“Our Navajo Bill of Rights, as informed by the Navajo value of individual freedom, prohibits coerced confessions.”). See also Eriacho v. Ramah District Court, No. SC-CV-61-04, 2005.NANN.0000001, ¶ 30 (Navajo Sup. Ct. Jan. 5, 2005) (VersusLaw) (discussing Rodriguez) (“We adopted the federal Miranda standard as consistent with the Common Law interpretation of the Navajo Bill of Rights to judge the validity of a waiver of the right against self-incrimination and an attorney while in police custody.”).

⁷⁴ See, e.g., Duncan v. Shiprock Dist. Ct., No. SC-CV-51-04, 2004.NANN.0000017, ¶ 45 n.4 (Navajo Sup. Ct. Oct. 28, 2004) (VersusLaw) (where Navajo Bill of Rights recognizes greater right than that afforded by the ICRA, the Court need not consider federal interpretations of the latter); Bennett v. Navajo Board of Election Supervisors, No. A-CV-26-90, 1990.NANN.0000016, ¶¶ 32-34, 39-41 (Navajo Sup. Ct. Dec. 12, 1990) (VersusLaw) (applying Navajo Bill of Rights rather than the ICRA to nullify an act of the Navajo Tribal Council).

⁷⁵ Rodriguez, ¶ 26 (VersusLaw).

⁷⁶ Id. (citing Navajo Nation v. MacDonald, No. A-CR-10-90, 1992.NANN.0000007, ¶ 90 (Navajo Sup. Ct. Feb. 13, 1992) (VersusLaw)).

⁷⁷ MacDonald, ¶ 90 (VersusLaw).

⁷⁸ Id. ¶ 91. “Navajo common law rejects coercion, including coercing people to talk. Others may ‘talk’ about a Navajo, but that does not mean coercion can be used to make that person admit guilt or the facts leading to a conclusion of guilt.” Id. See also Rodriguez, ¶ 26 (VersusLaw).

⁷⁹ Rodriguez, ¶ 27 (VersusLaw). “Our Navajo Bill of Rights, as informed by the Navajo value of individual freedom, prohibits coerced confessions.” Id.

⁸⁰ Id.

⁸¹ Id.

⁸² Id.

⁸³ The Court previously had occasion to consider the applicability of Miranda v. United States, but had not before Rodriguez explicitly held that Miranda’s minimum requirements are consistent with Navajo values. Rodriguez, ¶ 33 (VersusLaw).

⁸⁴ Rodriguez, ¶ 33 (VersusLaw). Miranda’s minimum requirements, as adopted by the Court, are discussed further in section IV (c), below.

⁸⁵ Rodriguez, ¶ 33 (VersusLaw).

⁸⁶ Id. ¶ 34.

⁸⁷ Id. The Court’s description of the proper government-to-citizen relationship is reminiscent of the Miranda court’s own language. See Miranda v. United States, 384 U.S. 436, 460 (1966) (quoted hereinabove at section III, n.58). Indeed, the Court noted that the Miranda court’s discussion of the origin of the right against coerced self-incrimination prompted its own application of hazhó’ógo to the case at hand. See Rodriguez, ¶ 38 (VersusLaw).

⁸⁸ Rodriguez, ¶¶ 38-40 (VersusLaw).

⁸⁹ Id. ¶ 38. The Court described hazhó’ógo as “a fundamental tenet informing [Navajos] how [they] must approach each other as individuals[,]” requiring that Navajos conduct themselves with patience and respect for other Navajos, including in the custodial interview setting. Id. ¶¶ 38-39.

⁹⁰ Id. ¶ 38. The Court offered translations of the following terms: hazhó ‘ógo, hazho’ogo sha’alchini( “hazhó’ógo, hazhó’ógo my children”), id. ¶ 50 n.3; Nohookaa Dine’e (“Earth-surface-people (human beings)”), id. ¶ 51 n.4; and Aaddd na’nile’dii el dooda (“Delicate matters and things of importance must not be approached recklessly, carelessly, or with indifference to consequences.”), id. ¶ 52 n.5.

⁹¹ Id. ¶¶ 38-39.

⁹² Rodriguez, ¶ 39 (VersusLaw).

⁹³ Id. ¶ 33.

⁹⁴ Id. Cf. Miranda v. United States, 384 U.S. 436, 444 (1966) (quoted hereinabove at section III, n.55).

⁹⁵ Rodriguez, ¶¶ 34, 38-39 (VersusLaw).

⁹⁶ Id. ¶ 34.

⁹⁷ Id. ¶ 39.

⁹⁸ Id.

⁹⁹ Id. ¶ 40.

¹⁰⁰ Rodriguez ¶ 40. The Court suggested that forms should be free from typographical, spelling and grammatical errors, since such errors might affect the required clarity or explanation. Id. ¶ 53 n.6.

¹⁰¹ Id. ¶ 40.

¹⁰² See Navajo Nation v. Platero, No. A-CR-0491, 1991.NANN.0000001, ¶¶ 21-22 (Navajo Sup. Ct. Dec. 5, 1991) (VersusLaw); Bennett v. Navajo Bd. of Election Supervisors, No. A-CV-26-90, 1990.NANN.0000016, ¶ 42 (Navajo Sup. Ct. Dec. 12, 1990) (VersusLaw); Russel Lawrence Barsh, Putting the Tribe in Tribal Courts: Possible? Desirable?, 8 KAN. J.L. & PUB. POL’Y 74, 83-84 (1999); James W. Zion, Law as Revolution in the Courts of the Navajo Nation, 20 FEDERAL BAR ASSOCIATION INDIAN LAW CONFERENCE 333, 344-51 (1995); Raymond D. Austin, ADR and the Navajo Peacemaker Court, 32(2) JUDGES’ JOURNAL 8, 10-11 (1993); Daniel L. Lowery, Developing a Tribal Common Law Jurisprudence: The Navajo Experience 1969-1992, 18 AM. INDIAN L. REV. 379, 383 (1993); Tom Tso, Moral Principles, Traditions, and Fairness in the Navajo Nation Code of Judicial Conduct, 76 JUDICATURE 15, 16 (1992). See also Bethany R. Berger, Justice and the Outsider: Jurisdiction over Nonmembers in Tribal Legal Systems, 37 ARIZ. ST. L.J. 1047, 1070-71, 1074 (2005); Sarah Krakoff, A Narrative of Sovereignty: Illuminating the Paradox of the Domestic Dependent Nation, 83 OR. L. REV. 1109, 1137-38 (2004).

¹⁰³ See Platero, ¶ 21 (VersusLaw); Zion, supra note 102, at 344-46; Austin, supra note 102, at 11; Tso, supra note 102, at 16.

¹⁰⁴ See 7 N.N.C. § 201 (2005) (history note); Zion, supra note 102, at 350 n.70 (Courts of the Navajo Nation established by Navajo Tribal Council Res. CO-69-58 (October 16, 1958) and CJA-5-59 (Jan. 9, 1959)). See also James W. Zion, Civil Rights in Navajo Common Law, 50 U. KAN. L. REV. 523, 536-44 (2001-2002); Lowery, supra note 102, at 387-88; Tom Tso, The Process of Decision Making in Tribal Courts, 31 ARIZ. L. REV. 225, 229-31 (1989). See generally Kristen A. Carpenter, Considering Individual Religious Freedoms under Tribal Constitutional Law, 14 KAN. J.L. & PUB. POL’Y 561, 586-87 (2004-2005); Jayne Wallingford, The Role of Tradition in the Navajo Judiciary: Reemergence and Revival, 19 OKLA. CITY U. L. REV. 141, 148-50 (1994). However, Navajo Common Law does not appear in practice to have been the law of preference in the courts of the Navajo Nation in at least the first two decades after their formation in 1959. See Stephen Conn, Mid-Passage–The Navajo Tribe and Its First Legal Revolution, 6 AM. INDIAN L. REV. 329, 366 (1978). See also Zion, supra note 102, at 350-51. The publication of court opinions began in 1969. See Lowery supra note 102, at 390. See also Zion supra note 102, at 351; Wallingford, supra, at 153; Krakoff, supra note 102, at 1130.

¹⁰⁵ See Lowery, supra note 102, at 387-88; Tso, supra note 104, at 229-30. See also Bobroff, supra note 35, § III; Barber, supra note 35, at 6.

¹⁰⁶ 7 N.T.C. § 204 (Supp. 1985). See Lowery, supra note 102, at 387-88; Tso, supra note 102, at 16; Tso, supra note 104, at 230.

¹⁰⁷ A VersusLaw (online) search of cases decided by the Supreme Court of the Navajo Nation between November 1, 2002 and October 9, 2006 (the most recent opinion posted on VersusLaw as of January 18, 2007) uncovered 76 opinions, of which 38 (half) mention Navajo common or traditional law, Diné bi beehaz’áanii (or beenahaz’áanii), or the Fundamental Laws. Of these 38 cases, 29, including Rodriguez, cite and apply Diné bi beehaz’áanii or the Fundamental Laws or rely upon cases that do so, while seven apply Navajo Common Law without mentioning or citing cases that implement Diné bi beehaz’áanii or the Fundamental Laws. The absence of an explicit mention of the Fundamental Laws or Diné bi beehaz’áanii in most of the latter seven cases might be explained by the proximity of these decisions to the date of adoption of the Fundamental Laws and the relatively advanced stage of those proceedings as of that date. See Begay v. Navajo Nation Election Admin., No. SC-CV-27-02, 2003.NANN.0000008, ¶ 14 (Navajo Sup. Ct. July 31, 2003) (VersusLaw); In re Marriage of Whitehorse, No. SC-CV-30-00, 2003.NANN.0000009, ¶ 20 (Navajo Sup. Ct. Mar.17, 2003) (VersusLaw); Benally v. Mobil Oil Corp., No. SC-CV-05-01, 2003.NANN.0000023 (Navajo Sup. Ct. Nov. 24, 2003) (VersusLaw); Peabody Western Coal Co. v. Navajo Nation Labor Comm’n, No. SC-CV-14-03, 2003.NANN.0000001 (Navajo Sup. Ct. Aug. 1, 2003) (VersusLaw); Leuppe v. Wallace, No. SC-CV-21-2001, 2003.NANN.0000018, ¶ 16 (Navajo Sup. Ct. Jan. 10, 2003) (VersusLaw). The remaining two of the 38 cases neither apply the Fundamental Laws or Navajo Common Law nor rely on cases that do so.

¹⁰⁸ Additional evidence of the Court’s recent practice may be seen from a search of all Navajo Nation Court cases posted on VersusLaw as of January 18, 2007: Twenty-five cases mention Diné bi beehaz’áanii (or beenahaz’áanii), only four of which were decided prior to November 1, 2002. See Davis v. Means, No. A-CV-23-93, 1994.NANN.0000006 (Navajo Sup. Ct. Sept. 27, 1994) (VersusLaw); Bennett v. Navajo Bd. of Election Supervisors, No. A-CV-26-90, 1990.NANN.0000016 (Navajo Sup. Ct. Dec. 12, 1990) (VersusLaw); Rough Rock Cmty. Sch. v. Navajo Nation, No. SC-CV-06-94, 1995.NANN.0000008 (Navajo Sup. Ct. Nov. 8, 1995) (VersusLaw); Howard v. Navajo Bd. of Election Supervisors, No. A-CV-65-90, 1991.NANN.0000019 (Navajo Sup. Ct. Mar. 6, 1991) (VersusLaw).

¹⁰⁹ Navajo Nation Council Res. No. CN-69-02, supra note 27, Exhibit “A,”§ 3(E).

¹¹⁰ The assignment of cases to particular areas of substantive law in the footnotes that follow is intended only as a suggestive guide and is non-exhaustive. Many of the cases cited below could be assigned to more than one area of substantive law.

¹¹¹ See Navajo Nation v. Kelly, No. SC-CR-04-05, 2006.NANN.0000012, ¶¶ 27-30 (Navajo Sup. Ct. July 24, 2006) (VersusLaw) (protection against double jeopardy); Duncan v. Shiprock Dist. Ct., No. SC-CV-51-04, 2004.NANN.0000017, ¶¶ 37-39, (Navajo Sup. Ct. Oct. 28, 2004) (VersusLaw) (right to a jury trial for counterclaims in repossession case); Navajo Hous. Auth. v. Bluffview Resident Mgmt. Corp., No. SC-CV-35-00, 2003.NANN.0000021, ¶¶ 34-35 (Navajo Sup. Ct. Dec. 17, 2003) (VersusLaw) (analyzing right to hearing prior to dissolution of injunction); A.P. v. Tuba City Family Ct., No. SC-CV-02-05, 2005.NANN.0000007, ¶ 33 (Navajo Sup. Ct. May 26, 2005) (VersusLaw) (writ of mandamus proper where due process violated by district court’s issuing exclusion order without a hearing).

¹¹² See Navajo Nation v. Rodriguez, No. SC-CR-03-04, 2004.NANN.0000014 (Navajo Sup. Ct. Dec. 16, 2004) (VersusLaw) (waiver of right against self-incrimination in custodial interview); Eriacho v. Ramah Dist. Ct., No. SC-CV-61-04, 2005.NANN.0000001, ¶¶ 34, 36 n.1 (Navajo Sup. Ct. Jan. 5, 2005) (VersusLaw) (waiver of right to jury trial); Thompson v. Greyeyes, No. SC-CV-29-04, 2004.NANN.0000009, ¶¶ 27-28 (Navajo Sup. Ct. May 24, 2004) (VersusLaw) (granting writ of habeas corpus for defendant wrongfully detained for violation of domestic violence protective order); H.M. v. Greyeyes, No. SC-CV-63-04, 2004.NANN.0000018, ¶ 24 (Navajo Sup. Ct. Oct. 13, 2004) (VersusLaw) (procedure for obtaining, and scope of, writ of habeas corpus in juvenile cases); Navajo Nation v. Morgan, No. SC-CR-02-05, 2005.NANN.0000018, ¶¶ 19-20 (Navajo Sup. Ct. Nov. 8, 2005) (VersusLaw) (guilty plea in criminal case invalid where not made knowingly and intelligently); Navajo Nation v. Badonie, No. SC-CR-06-05, 2006.NANN.0000003, ¶ 25 (Navajo Sup. Ct. Mar. 7, 2006) (VersusLaw) (right to speedy trial in criminal cases); Seaton v. Greyeyes, No. SC-CV-04-06, 2006.NANN.0000005, ¶¶ 26-27 (Navajo Sup. Ct. Mar. 28, 2006) (VersusLaw) (same).

¹¹³ See Judy v. White, No. SC-CV-35-02, 2004.NANN.0000007, ¶ 55 (Navajo Sup. Ct. Aug. 2, 2004) (VersusLaw) (initial pleading requirement) (Resolution CN-69-02 instructs judges and justices to take notice of Diné bi beehaz’áanii in their decisions, when applicable, but does not impose requirement that Diné bi beehaz’áanii be raised in the initial pleading); Mitchell v. Davis, No. SC-CV-52-03, 2004.NANN.0000012, ¶ 23 (Navajo Sup. Ct. Aug. 16, 2004) (VersusLaw) (Rule 60 of the Navajo Rules of Civil Procedure (relief from judgment or order) embodies Navajo principles of fairness and finality).

¹¹⁴ See Fort Defiance Hous. Corp. v. Lowe, No. SC-CV-32-03, 2004.NANN.0000005, ¶17 (Navajo Sup. Ct. Apr. 12, 2004) (VersusLaw) (interpreting bond requirement of forcible entry and detainer statute in residential context); Fort Defiance Hous. Corp. v. Allen, No. SC-CV-01-03, 2004.NANN.0000010, ¶¶ 36 n. 3, 37 n.4 (VersusLaw) (prospective application of holding regarding conflict between statute and court rule with respect to timely appeals in forcible entry and detainer cases); Allen v. Fort Defiance Hous. Corp., No. SC-CV-05-05, 2005.NANN.0000019, ¶¶ 20-25 (Navajo Sup. Ct. Dec. 14, 2005) (VersusLaw) (allowing de novo review of facts, but not an entire new trial, on appeal in forcible entry and detainer cases); In re Bizardi, No. SC-CV-55-02, 2004.NANN.0000016, ¶¶ 19-20 (Navajo Sup. Ct. Nov. 9, 2004) (VersusLaw) (concept of mootness and bar on advisory opinions consistent with Navajo principle of k’é).

¹¹⁵ See Navajo Nation v. Arviso, No. SC-CV-14-05, 2005.NANN.0000009, ¶¶ 31-35 (Navajo Sup. Ct. Aug. 11, 2005) (VersusLaw) (forcible entry and detainer in commercial lease context) (_Diné bi beehaz’áanii_ does not recognize “equitable lease” for business purposes). Cf. Lowe, ¶¶ 20-22, 28, 30 (VersusLaw) (providing guidelines to trial courts regarding due process requirements for eviction orders in residential forcible entry and detainer cases).

¹¹⁶ See Goldtooth v. Naa Tsis’ Aan Cmty. Sch., Inc., No. SC-CV-14-04, 2005.NANN.0000008, ¶ 31 (Navajo Sup. Ct. July 18, 2005) (VersusLaw) (applying concept of naat ‘aanii, an individual with a persuasive role within a community, to find apparent authority and uphold employment agreement); Etsitty v. Dine Bii Ass’n for Disabled Citizens, Inc., No. SC-CV-48-04, 2005.NANN.0000015, ¶¶ 28-29 (Navajo Sup. Ct. Dec. 5, 2005) (VersusLaw) (setting forth factors for test to determine whether an employee is an independent contractor); Kesoli v. Anderson Sec. Agency, No. SC-CV-01-05, 2005.NANN.0000013, ¶ 27 (Navajo Sup. Ct. Oct. 12, 2005) (VersusLaw) (shouting by supervisor constitutes “harassment” under Navajo Preference in Employment Act and just cause for termination); Taylor v. Dilcon Cmty. Sch., No. SC-CV-73-04, 2005.NANN.0000012, ¶ 20 (Navajo Sup. Ct. Oct. 7, 2005) (VersusLaw) (doctrine of exhaustion of administrative remedies is consistent with fundamental Navajo principles); Tso v. Navajo Hous. Auth., No. SC-CV-10-02, 2004.NANN.0000013, ¶ 41 n.1 (Navajo Sup. Ct. Aug. 26, 2004) (VersusLaw) (termination for cause) (notwithstanding the Fundamental Laws, Navajo Nation courts must directly apply provisions of the Navajo Nation Code where they control and clearly require a particular outcome); Smith v. Navajo Nation Dep’t of Head Start, No. SC-CV-50-04, 2005.NANN.0000011, ¶ 24 (Navajo Sup. Ct. Sept. 21, 2005) (VersusLaw) (“[O]rdinarily a violation of a clear rule set out in a personnel manual for which termination is a result of non-compliance is ‘just cause.’ However, an employee may challenge the enforcement of that rule as impossible to fulfill under the circumstances of the case or as violating Navajo public policy.”).

¹¹⁷ See Allstate Indem. Co. v. Blackgoat, No. SC-CV-15-01, 2005.NANN.0000002, ¶¶ 26-27 (Navajo Sup. Ct. Jan. 12, 2005) (VersusLaw) (prejudgment interest in insurance claim arising out of auto accident), aff’d, Allstate Indem. Co. v. Blackgoat, No. SC-CV-15-01, 2005.NANN.0000017, ¶¶ 14, 31 (Navajo Sup. Ct. May 20, 2005) (VersusLaw) (declining to reverse previous ruling in same case because of the strong public policy of the Navajo Common Law concept of nályééh).

¹¹⁸ See Begay v. Chief, No. SC-CV-08-03, 2005.NANN.0000004, ¶¶ 25-27 (Navajo Sup. Ct. May 18, 2005) (VersusLaw) (refusing to recognize common law divorce); Kascoli v. Kascoli, No. SC-CV-08-05, 2005.NANN.0000014, ¶¶ 22, 24 (Navajo Sup. Ct. Nov. 15, 2005) (VersusLaw) (remanding to trial court with instructions to consider applicability of Diné bi beehaz’áanii to distribution of property).

¹¹⁹ See, e.g., Tso, ¶ 41 n.1 (VersusLaw) (declining to apply Navajo Common Law where language of Navajo Nation Code is clear and unambiguous).

¹²⁰ Id. (internal citations omitted) (emphasis added).

¹²¹ Id. See also Smith v. Navajo Nation Dep’t of Head Start, No. SC-CV-50-04, 2005.NANN.0000011, ¶¶ 24, 27-28 (Navajo Sup. Ct. Sept. 21, 2005) (VersusLaw) (violation of clear rule set out in personnel manual is “just cause” for termination under Navajo Preference in Employment Act provided rule does not violate the public policy of the Navajo Nation as expressed by the Council in the Navajo Nation Code or in Diné bi beehaz’áanii). Thus, the Supreme Court of the Navajo Nation interprets the Fundamental Laws of the Diné as a directive to fill in the interstices of, and resolve ambiguities in, the Navajo Nation Code using Navajo Common Law, not an invitation to supplant the Code with Navajo Common Law. See Tso, ¶ 41 n.1.

¹²² Editor’s note: The opinions reviewed for this case note (those decided prior to October 10, 2006 and published in the VersusLaw database as of January 18, 2007) neither squarely posit nor conclusively resolve the question of whether an applicable provision of the Navajo Nation Code controls even if the Court determines the provision conflicts with Diné bi beenahaz’áanii. However, in In re Lee, No. SC-CV-32-06 (Navajo Sup. Ct. Aug. 11, 2006) (not yet available on VersusLaw as of April 11, 2007), the Court invalidated the residency and continuous presence provisions of the Navajo Election Code, enacted prior to passage of the Fundamental Laws of the Diné, as inconsistent with Diné bi beenahaz’áanii. See Ernestine Tsinigine, The Fundamental Laws of the Diné, (unpublished student paper, University of New Mexico School of Law) (on file with the author) .

¹²³ Begay, ¶ 25 (VersusLaw) (“case law stating the plain meaning of statutory language still controls the outcome of later cases”). See also Navajo Nation v. Badonie, No. SC-CR-06-05, 2006.NANN.0000003, ¶ 25 (Navajo Sup. Ct. Mar. 7, 2006) (VersusLaw) (applying factors for evaluating allegation of violation of right to speedy trial established by case law, interpreted in light of Diné bi beehaz’áanii). But see Eriacho v. Ramah Dist. Ct., No. SC-CV-61-04, 2005.NANN.0000001, ¶ 36 n.1 (Navajo Sup. Ct. Jan. 5, 2005) (VersusLaw) (a previous interpretation of statutory language is not binding if the language is unclear and the Court did not consider Navajo Common Law in its analysis).

¹²⁴ See, e.g., Duncan v. Shiprock Dist. Ct., No. SC-CV-51-04, 2004.NANN.0000017, ¶¶ 37-39 (Navajo Sup. Ct. Oct. 28, 2004) (VersusLaw) (ambiguity of term “miscellaneous” in statute in the context of a fundamental right requires interpretation consistent with Diné bi beehaz’áanii); H.M. v. Greyeyes, No. SC-CV-63-04, 2004.NANN.0000018, ¶ 24 (Navajo Sup. Ct. Oct. 13, 2004) (VersusLaw) (ambiguity in Rule 26 of the Navajo Rules of Civil Appellate Procedure (governing writ practice) requires examination of Diné bi beehaz’áanii, or Navajo Common Law principles, on the status of children); Kesoli v. Anderson Sec. Agency, No. SC-CV-01-05, 2005.NANN.0000013, ¶ 27 (Navajo Sup. Ct. Oct. 12, 2005) (VersusLaw) (“Lacking any guidance in the [Navajo Preference in Employment Act], the Court adopts Anderson’s suggested definition of ‘harassment’ as consistent with the policies of the statute and Diné bi beehaz’áanii”).

¹²⁵ Eriacho, ¶¶ 30-31 (VersusLaw) (criminal defendant’s alleged waiver of right to jury trial not “knowing and intelligent” where arraignment waiver form failed to explain right may be waived by inaction). See also Navajo Nation v. Kelly, No. SC-CR-04-05, 2006.NANN.0000012, ¶¶ 27-30 (Navajo Sup. Ct. July 24, 2006) (double jeopardy). The Court in Eriacho stated:

As Hozho’go requires meaningful notice and explanation of a right before a waiver of that right is effective, it requires, at a bare minimum, that the Nation give notice that the right to a jury trial may be waived by inaction. For notice to be meaningful, and therefore a waiver to be effective, the Navajo government must explain to the defendant that the jury trial right is not absolute, as it may be waived by doing nothing within a certain time. Absent this explanation, the information received by a defendant is incomplete, as it appears the right is automatic and perpetual, like the federal constitutional right. Without this information, the waiver by inaction is not truly knowing and intelligent, and would violate the defendant’s right to due process. As the description of the right to jury trial in the waiver of arraignment form does not include a statement that the right must be exercised within fifteen days, Eriacho’s failure to request it within that time was not a knowing and intelligent waiver.

E Eriacho, ¶ 31 (VersusLaw) (emphasis added). See also id. ¶ 30 (discussing application of same Navajo Common Law principle of hozho’go in Rodriguez). The author notes the different orthographic representations for the same Navajo Common Law principle. Compare Navajo Nation v. Rodriguez, No. SC-CR-03-04, 2004.NANN.0000014, ¶¶ 38-39 (Navajo Sup. Ct. Dec. 16, 2004) (VersusLaw) (hazhó’ógo) with Eriacho, ¶¶ 30-31 (VersusLaw) (hozho’go).

¹²⁶ Eriacho, ¶ 36 n.1 (VersusLaw).

¹²⁷ Navajo Nation v. Morgan, No. SC-CR-02-05, 2005.NANN.0000018, ¶¶ 19-20 (Navajo Sup. Ct. Nov. 8, 2005) (VersusLaw) (failure of courts and other governmental officials to proceed carefully and patiently, clearly explaining a defendant’s rights before accepting a waiver thereof, is inconsistent with hazhó’ógo).

¹²⁸ See Etsitty v. Dine Bii Ass’n for Disabled Citizens, Inc., No. SC-CV-48-04, 2005.NANN.0000015, ¶¶ 28-29 (Navajo Sup. Ct. Dec. 5, 2005) (VersusLaw) (adapting New Mexico Supreme Court “control test,” setting forth factors to determine whether an employee is an independent contractor, to include additional factors to “foster harmony by honoring the expectations of the parties under the Navajo principle of k’é.”).

¹²⁹ Rodriguez, ¶¶ 24, 31-34, 38 (VersusLaw). Cf. Goldtooth v. Naa Tsis’ Aan Cmty. Sch., Inc., No. SC-CV-14-04, 2005.NANN.0000008, ¶¶ 31, 38 n.4 (Navajo Sup. Ct. July 18, 2005) (VersusLaw) (applying traditional Navajo concept of naat’aanii, or individual with a persuasive role within a community) (“This Court questioned both sides at oral argument as to the effect, if any, on the case if the Executive Director were considered a naat’aanii.”)

¹³⁰ Rodriguez, ¶ 24 (VersusLaw).

¹³¹ Id. (emphasis added).

¹³² The fact-specific take-home message of Rodriguez is its specific holdings regarding the right against self-incrimination in the context of, and the proper conduct of, custodial interviews. Id. ¶ 40.

¹³³ The message might also be stated as follows: If the Navajo Nation Code, or settled precedent that is consistent with Diné bi beehaz’áanii, does not unambiguously dictate the outcome of a dispute, and if there exists a decisional basis in Diné bi beehaz’áanii, or Navajo Common Law: then find it, argue it, and base the holding on it. If you don’t, the Supreme Court of the Navajo Nation may well do it for you.