Government Outline

• Topics covered: Issues of sovereign immunity, taxation, separation of powers and operation of the government.

• For cases relating to the operation of the judiciary, see Courts Outline. • For cases relating to legislation, see Statutory Interpretation Outline. • For cases relating to elections, see Elections Outline. • For cases relating to the relationship between the government of the Navajo Nation and state

governments or the federal government, and for cases describing the scope of Navajo sovereignty and power, including the Treaty of 1868, see Federal Indian Law Outline.

Contents

I.  Diné bi beenahaz’áanii ........................................................................................................... 1 

A.  Duties of a naat’áanii ....................................................................................................... 1 

1.  Becoming a naat’áanii ................................................................................................. 1 

2.  Fiduciary responsibility ................................................................................................ 1 

3.  Council as naat’áanii ................................................................................................... 1 

4.  Duty of respect ............................................................................................................. 1 

5.  Naat’áanii must find a solution .................................................................................... 1 

6.  Status as public figures ................................................................................................. 2 

7.  Protection from liability ............................................................................................... 2 

8.  Lead only so long as they enjoy the respect of the people ........................................... 2 

B.  Duties relating to the adoption of statutes or rules by governmental bodies ................... 2 

C.  Government’s use of Diné Bi Beenahaz’áanii in forming public policy ......................... 3 

D.  Government must “beg leave” of the people ................................................................... 3 

E.  Traditional views of community ...................................................................................... 3 

1.  Collective rights of community .................................................................................... 3 

2.  Navajo traditions regarding harmony and social order ................................................ 3 

3.  Chapter meetings as continuation of community consensus building .......................... 7 

II.  Legislation relating to the operation of government ............................................................... 7 

A.  Ethics in government ........................................................................................................ 7 

1.  Prohibited conduct ........................................................................................................ 7 

2.  Procedure of the Ethics and Rules Committee ............................................................. 9 

B.  Privacy and access to public records ................................................................................ 9 

1.  General descriptions of the Privacy Act ....................................................................... 9 

2.  Public access to records ................................................................................................ 9 

3.  Privacy for certain records .......................................................................................... 10 

4.  Labor Commission proceedings ................................................................................. 10 

C.  Procurement Act ............................................................................................................. 10 

III.  The operation of the Navajo Nation Government ............................................................. 11 

A.  Overall nature of government ........................................................................................ 11 

1.  General responsibilities of all public officials ............................................................ 11 

2.  Color of official authority ........................................................................................... 11 

3.  Power comes from the Navajo people ........................................................................ 11 

4.  Tripartite government ................................................................................................. 12 

5.  Separation of powers .................................................................................................. 12 

6.  Checks and balances ................................................................................................... 15 

B.  Operation of the Executive Branch ................................................................................ 15 

1.  Generally .................................................................................................................... 15 

2.  Operation of the Attorney General ............................................................................. 15 

3.  Limitations on power .................................................................................................. 16 

C.  Operation of the Legislative Branch .............................................................................. 16 

1.  General duties of Legislative Branch ......................................................................... 16 

2.  Policy and law making power .................................................................................... 16 

3.  Waiver of governmental authority .............................................................................. 17 

4.  Location of meeting of the Council ............................................................................ 18 

5.  Spending ..................................................................................................................... 18 

6.  Limits on power .......................................................................................................... 18 

D.  Operation of the Judiciary Branch ................................................................................. 18 

E.  Operation of chapters ..................................................................................................... 19 

F.  Commission on Navajo Government Development .......................................................... 19 

IV.  Taxation ............................................................................................................................. 20 

A.  Navajo Nation’s power to tax ........................................................................................ 20 

1.  In general .................................................................................................................... 20 

2.  Power to tax mining activities .................................................................................... 21 

3.  Power to tax non-Indians ............................................................................................ 21 

4.  Power to tax non-Indians on fee land ......................................................................... 21 

5.  Withdrawal of taxing power ....................................................................................... 22 

B.  Due process issues .......................................................................................................... 22 

C.  “Pay first, litigate later” .................................................................................................. 23 

D.  Uniform Tax Administration Statute ............................................................................. 23 

E.  Anti-injunction statute .................................................................................................... 23 

F.  Types of Navajo taxes ........................................................................................................ 23 

1.  Navajo Nation Hotel Occupancy Tax ......................................................................... 23 

2.  Business Activity Tax ................................................................................................. 24 

V.  Sovereign immunity .............................................................................................................. 24 

A.  General principles .......................................................................................................... 24 

1.  Navajo Nation is immune from suit absent valid waiver ........................................... 24 

2.  Purpose of the Sovereign Immunity Act .................................................................... 25 

3.  All issues resolved in favor of government ................................................................ 25 

4.  Jurisdictional ............................................................................................................... 25 

5.  Scope of immunity protection .................................................................................... 26 

6.  Waiver of sovereign immunity ................................................................................... 28 

B.  Exceptions to sovereign immunity ................................................................................. 29 

1.  Insurance exception .................................................................................................... 29 

2.  Mandamus exception .................................................................................................. 30 

3.  Civil rights exception ................................................................................................. 31 

C.  Procedure for suing the Navajo Nation .......................................................................... 31 

1.  Procedures must be strictly followed ......................................................................... 31 

2.  Notice of claim ........................................................................................................... 32 

3.  Naming of parties ....................................................................................................... 32 

4.  Changing venue to Window Rock .............................................................................. 32 

I. Diné bi beenahaz’áanii

A. Duties of a naat’áanii

1. Becoming a naat’áanii

• In Navajo thinking, the selection of a person by voters is one of two requirements for a candidate to become a naat’áanii. That person must also accept the position, and, to accept, must take an oath to serve the laws of the sovereign government within whose system he or she will serve the people- “naat’áanii ádee hadidziihi.” Matter of Grievance of Wagner, No. SC-CV-01-07, slip op. (Nav. Sup. Ct. May 14, 2007).

• Only when a person accepts through an oath will all of the Navajo people say that a person has been properly installed as a naat’áanii—“naat’áanii idlį bee bitooszįį.” In other words, “Diné binant’a’i bee bi’dooszįįd” or “Diné binaat’áanii bee bi’dooszįįd”. Matter of Grievance of Wagner, No. SC-CV-01-07, slip op. (Nav. Sup. Ct. May 14, 2007).

2. Fiduciary responsibility

• All public officials in the Nation have a fiduciary responsibility to the Navajo people to execute the trust the People have placed with them in the administration of the government. Thinn v. Navajo Generating Station, Nos. SC-CV-25-06 and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007).

• The naat’aanii was expected to be honest, faithful and truthful in dealing with his people. In re Certified Questions II, 6 Nav. R. 105 (Nav. Sup. Ct. 1989).

3. Council as naat’áanii

• The Council works for and on behalf of the People in their role as naat’áanii in the Naat’ájí Nahat’ááh (Legislative Branch). The Council legislates in the best interest of the People. Thinn v. Navajo Generating Station, Nos. SC-CV-25-06 and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007).

4. Duty of respect

• Words are not to be used to offend or intimidate, particularly in by a supervisor, which, in the context of Navajo thinking makes him a naat’aán’i. Kesoli v. Anderson Security Agency, 8 Nav. R. 724 (Nav. Sup. Ct. 2005).

• As a naat'aanii a supervisor has a responsibility to conduct himself thoughtfully and carefully with respect for his employees under the principle of házhó'ógo including utilizing any k'é mechanisms the employer provides to deal with disputes among employees. Kesoli v. Anderson Security Agency, 8 Nav. R. 724 (Nav. Sup. Ct. 2005).

5. Naat’áanii must find a solution

• Under Fundamental Law, the leaders do not ever lay down the trust to protect employment relationships and the laws because a leader is taught that they must find the solution, for it is always available. Thinn v. Navajo Generating Station, Nos. SC-CV-25-06 and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007).

• Naat’áanii idl98go éí t’áá nant[‘a dóó t’áá nahon['alá, háálá [áhgóó t’áá nist[á dahwiizt’i’ ákondi, Diné Bibeehaz’áanii dóó hane’ binahj8 baantsáhákeesgo éí choó’įįł dóó hasih ntsáhákeesígíí beego éí t’áá bik’ee’aan hodeezt’i’ dóó chi'dahwiizt’i’, dóó inda bikáá háadahwiizt’i’. Diyin Dine’é Ts’aa’ hadeiidiilaaígíí éí t’áá ákót’éigo yił hadadeiidiilaalá; yah’óót’i’, ałhééhonit’i’, dóó ch’ééhonit’i’, dóó éí t’óó dádeesł’=- da. Binahjį’ éí t’aa hat'éigi shíí hanahat'a' bee nistł’ajiyáago hanahat'a' bee hazhdinoodzíí’ dóó ajisiihgoda éí dóó hanahat'a' dóó habeehaz’áanii doo t’óó ni’ nizhdoołéeda hatsodizin dóó haáne’ éí bee bikáá haazhdoodááł dóó bee nistł’ahaz’i'65 bee hózh==go bik’idiyaa nizhdooleeł dóó bi’22zh doo gááł. (It is hard and difficult to be a leader, but according to the Navajo law, it is possible to enter a situation and to exit the situation. According to the basket design, there is an opening and the design is not sealed off. In this way it is always possible when you are a leader, you could make a mistake and could also make the wrong decision to say something, but you could lay down your leadership and use prayer or native philosophy to restore yourself in good way. In this way, it will be a blessing again and you will feel positive again.) Thinn v. Navajo Generating Station, Nos. SC-CV-25-06 and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007).

• As demonstrated in the design of the sacred wedding basket, a leader, through adherence to the laws, the analysis of the stories of the Diné journey, and a positive approach will find a solution (bi’2’iídzá) around, through, or over that which confronts the people. Thinn v. Navajo Generating Station, Nos. SC-CV-25-06 and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007).

6. Status as public figures

• Some sings attracted participants from other communities, and as many as a thousand people might gather for one of the more important ceremonies. A singer’s influence would extend beyond the ceremonial occasion only if he was endowed with the personal qualities that inspire respect, the qualities associated with a naat’aán’i. Given this, the Navajo practitioner or apprentice is a public figure. Hasteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997).

• The ceremonial practitioners are public figures of general fame or notoriety in the community and have pervasive involvement in the affairs of the society. Hasteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997).

7. Protection from liability

• A leader is protected in exercising authority until he knows he has been relieved of authority. Navajo Nation v. Platero, 6 Nav. R. 422 (Nav. Sup. Ct. 1991).

8. Lead only so long as they enjoy the respect of the people

• Placing an executive officer on administrative leave has its roots in Navajo tradition. After epic battles were fought by the hero twins, the Navajo people set out to become a strong nation. It became necessary to select a naat’aán’i by a consensus of the people. Such a leader was chosen based upon his ability to help the people survive. If he lost the trust of the people, they stopped following him. In re Certified Questions II, 6 Nav. R. 105 (Nav. Sup. Ct. 1989).

B. Duties relating to the adoption of statutes or rules by governmental bodies

• The rule requiring a clear statement of intent before applying a statute retroactively is adopted from the United States Supreme Court but is consistent with the Navajo concept of ííshjání

ádooniíl, which mandates that Navajo laws must be clear so that our people may understand them. Phillips v. Navajo Housing Auth., 8 Nav. R. 751 (Nav. Sup. Ct. 2005).

• This clarity requirement takes on particular importance in laws affecting homes, as homes hold a central place in Navajo thinking. Phillips v. Navajo Housing Auth., 8 Nav. R. 751 (Nav. Sup. Ct. 2005).

C. Government’s use of Diné Bi Beenahaz’áanii in forming public policy

• The decision of the people through their local and national governments on how to use particular tracts of land is premised upon the “importance of k'e to maintaining social order.” Navajo Nation v. Arviso, 8 Nav. R. 697 (Nav. Sup. Ct. 2005).

• A land use decision by the people through their governments is the balance struck between the individual land user and the needs and desires of the community. This is a part of the broader Navajo traditional principle of freedom with responsibility. An individual has much freedom in Navajo society, but that freedom must be exercised with respect for self, family, relatives, and the community at large. Navajo Nation v. Arviso, 8 Nav. R. 697 (Nav. Sup. Ct. 2005).

• The Navajo Nation Council recognized that Dine' Bi Beenahaz’áanii teaches that the rights and freedoms of the individual are not the only considerations. Navajo Nation v. Arviso, 8 Nav. R. 697 (Nav. Sup. Ct. 2005).

D. Government must “beg leave” of the people

• Under the concept of Baa ní’jookąąh or “you beg leave” of your people, leaders should obtain the permission of the people. This is the Navajo way. You approach and ask. The act of approach suggests humility and equality. The cornerstone of this custom is k’é. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004).

E. Traditional views of community

1. Collective rights of community

• Just as there are fundamental rights and freedoms of individuals as acknowledged by the Council in the Navajo Bill of Rights, there are fundamental rights of the collective People, the tribal nation, as acknowledged and recognized in the Fundamental Law statute. Thinn v. Navajo Generating Station, Nos. SC-CV-25-06 and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007).

• The collective Navajo people, who have chosen to utilize their common land for economic benefit, should be respected under k'e. Navajo Nation v. Arviso, 8 Nav. R. 697 (Nav. Sup. Ct. 2005).

2. Navajo traditions regarding harmony and social order

a) Sacred words as key to social harmony

(1) Words are always sacred

• Words are sacred and never frivolous in Navajo thinking. Kesoli v. Anderson Security Agency, 8 Nav. R. 724 (Nav. Sup. Ct. 2005).

• Words are sacred and never frivolous in Navajo thinking. Smith v. Navajo Nation Department of Head Start, 8 Nav. R. 709 (Nav. Sup. Ct. 2005).

(2) Words are to be used with caution and respect; not to offend

• Under the Navajo concept of k’é, respectful use of one's words requires the reservation, circumspective or complete avoidance of judgmental characterizations of others which overly-broadly designate a certain negative trait across a wide timeframe, or which inaccurately and negatively characterize a single negative trait of a person to be the permanent, complete and unchanging character of a person, The understanding is that when one fails to properly exercise respect by engaging in these types of inaccurate characterizations of another person, he or she risks endangering the future wellbeing of the person, the person's family and the community (a network of interrelated families) by creating conditions which may be conducive toward maintaining or exacerbating the existence of such characteristics. Baldwin v. Chinle Fam. Ct., No. SC-CV-37-08, slip op. (Nav. Sup. Ct. October 30, 2008).

• Words are not to be used to offend or intimidate. Kesoli v. Anderson Security Agency, 8 Nav. R. 724 (Nav. Sup. Ct. 2005).

• As a matter of Navajo tradition and custom, people speak with caution and respect, choosing their words carefully to avoid harm to others. Navajo Nation v. Crockett, 7 Nav. R. 237 (Nav. Sup. Ct. 1996).

• Speech should be delivered with respect and honesty. This requirement arises from the concept of ke’, which is the “glue” that creates and binds relationships between people. Navajo Nation v. Crockett, 7 Nav. R. 237 (Nav. Sup. Ct. 1996).

(3) Basis of Navajo contract law

• In contract cases, all words must have meaning to conform to the Navajo common law principle that every word is powerful, sacred and never frivolous. Office of Navajo Labor Rel. ex rel. Bailon v. Central Consolidated School Dist., 8 Nav. R. 501 (Nav. Sup. Ct. 2004).

• Navajo common law requires one to follow through on a valid agreement made with another person. Ben v. Burbank, 7 Nav. R. 222 (Nav. Sup. Ct. 1996).

• Traditionally, when people make promises between one another, oral or written, they should honor those promises. Ben v. Burbank, 7 Nav. R. 222 (Nav. Sup. Ct. 1996).

• The Navajo way of dealing with a breach of a promise is to compensate the injured party and restore and maintain the relationship between the parties. Ben v. Burbank, 7 Nav. R. 222 (Nav. Sup. Ct. 1996).

(4) Ability to speak Navajo language

• The ability to speak (the Navajo language) is a gift bestowed upon the Navajos by the holy beings as the holy language of white shell “saad,” turquoise “saad,” abalone “saad,” and jet “saad.” “Saad” is creative thinking, planning and debating in Navajo society. Communication is essential to life. It is the basis of k’e, relationships and respect. Thus, while on one hand saad is sacred, on the other hand saad is the basis of teaching, which includes ridicule. Hasteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997).

• Language, perhaps the most intricate phase of culture by its nature symbolical but in addition to the expected linguistic symbolism, there is a ritualistic symbolism, like that of color, direction, and number. Speech, as one of man’s faculties, references in prayer to the “tip of the speech,” the existence of the word from the very beginning of conceivable time, the requirement that prayer and song be accurately reproduced in spite of stringent restrictions and a strain on the memory....

The painted symbol of a prayer with its word is further proof of Navajo recognition of the power of the word. Hasteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997).

(5) Speech must be free

• Navajo free speech is sacred. Hasteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997).

b) Freedom with responsibility toward fellow community members

• An individual has much freedom in Navajo society, but that freedom must be exercised with respect for self, family, relatives, and the community at large. Navajo Nation v. Arviso, 8 Nav. R. 697 (Nav. Sup. Ct. 2005).

• When evaluating personal rights, the rights and freedoms of the people as a whole must also be recognized. Navajo Nation v. Arviso, 8 Nav. R. 697 (Nav. Sup. Ct. 2005).

• K’é contemplates that while an individual within Navajo society enjoys a large degree of freedom, that freedom must be exercised with respect for self, family, clan relatives, and the community at large. Williams v. Lee, 8 Nav. R. 783 (W.R. Dist. Ct. 2003).

• K’é promotes cooperation and compassion, while stressing the reciprocal duties and responsibilities owed between individuals, allowing the members of a community to thrive in hózh=. Williams v. Lee, 8 Nav. R. 783 (W.R. Dist. Ct. 2003).

• A fundamental Navajo principle is freedom with responsibility. Navajo Nation v. Crockett, 7 Nav. R. 237 (Nav. Sup. Ct. 1996).

• This is part of the broader Navajo traditional principle of freedom with responsibility. An individual has much freedom in Navajo society, but that freedom must be exercised with respect for self, family, clan relatives, and the community at large. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996).

c) Critical nature of respect in preserving social harmony

• Navajo Fundamental Law strongly acknowledges the core importance of k’é. Baldwin v. Chinle Fam. Ct., No. SC-CV-37-08, slip op. (Nav. Sup. Ct. October 30, 2008).

• The Navajo concept of k’é defines a peaceful and harmonious relationship which respects the present and future well being of the person. At the core of retaining k’é is maintaining respect for others, particularly respect in one's use of words in talking about others. Baldwin v. Chinle Fam. Ct., No. SC-CV-37-08, slip op. (Nav. Sup. Ct. October 30, 2008).

• The Navajo concept of k’é requires that families be properly protected from non-existent or faulty conclusions that do not meet the standard of clear and convincing evidence. Baldwin v. Chinle Fam. Ct., No. SC-CV-37-08, slip op. (Nav. Sup. Ct. October 30, 2008).

• Hózhó’ógo is not a man-made law, but rather a fundamental tenet informing us how we must approach each other as individuals. When discussions become heated, whether in a family setting, in a community meeting or between any people, it's not uncommon for an elderly person to stand and say “hózhó’ógo, hózhó’ógo sha’áłchíní.” The intent is to remind those involved that they are Nohookáá Diné, dealing with another Nohookáá Diné, and that therefore patience and respect are due. Navajo Nation v. Rodriguez, 8 Nav. R. 604 (Nav. Sup. Ct. 2004).

• When faced with important matters, it is inappropriate to rush to conclusion or to push a decision without explanation and consideration to those involved. Áádóó na’níle’dii éí dooda. This is hózhó’ógo, and we see that this is an underlying principle in everyday dealings with relatives and other individuals, as well as an underlying principle in our governmental institutions. Modern

court procedures and our other adopted ways are all intended to be conducted with hózhó’ógo in mind. Navajo Nation v. Rodriguez, 8 Nav. R. 604 (Nav. Sup. Ct. 2004).

• The law of k’é plays through Navajo society, even in the Judicial Branch of the Navajo Government. The Judge’s Code of Conduct indicates, “A judge should behave to everybody as if they were his or her relatives.” Relatives are the epitome of k’é. Thus, even judges are subject to learn k’é. Benally v. Benally, 8 Nav. R. 796 (Kay. Fam. Ct. 2003).

• Navajo common law highly values respect. Begay v. Navajo Election Admin., 8 Nav. R. 241 (Nav. Sup. Ct. 2002).

• 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).

• K’e recognizes ‘your relations to everything in the universe,” in the sense that Navajo share respect for others and for a decision made by the group. It is a deep feeling for responsibilities to others and the duty to live in harmony with them. It has to do with the importance of relationships to foster consensus and healing. It is a deeply-felt emotion which is learned from childhood. To maintain good relations and respect one another, Navajos must abide by this principle of k’e. Ben v. Burbank, 7 Nav. R. 222 (Nav. Sup. Ct. 1996).

• One must respect his or her relatives in order to maintain social order. Ben v. Burbank, 7 Nav. R. 222 (Nav. Sup. Ct. 1996).

d) Distributive justice and the individual’s duty to the community

• 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).

• K’e stresses the duties and obligation of individuals relative to their community. 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).

• Distributive justice requires sharing of Navajo Nation resources among eligible applicants. It has its roots in Navajo traditional concepts of community progress through sharing. This is part of Navajo egalitarianism. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996).

e) K’e as applied in specific cases

(1) Land policy

• The decision of the people through their local and national governments on how to use particular tracts of land is premised upon the “importance of k'e to maintaining social order.” Navajo Nation v. Arviso, 8 Nav. R. 697 (Nav. Sup. Ct. 2005).

• A land use decision by the people through their governments is the balance struck between the individual land user and the needs and desires of the community. This is a part of the broader Navajo traditional principle of freedom with responsibility. An individual has much freedom in

Navajo society, but that freedom must be exercised with respect for self, family, relatives, and the community at large. Navajo Nation v. Arviso, 8 Nav. R. 697 (Nav. Sup. Ct. 2005).

(2) Leases

• K’e does not create an "equitable lease" in business property. Navajo Nation v. Arviso, 8 Nav. R. 697 (Nav. Sup. Ct. 2005).

• K'e does not mandate an attempted negotiation for a "renewal" when the alleged lessee has no underlying right to the property and has operated without respect for the community. Navajo Nation v. Arviso, 8 Nav. R. 697 (Nav. Sup. Ct. 2005).

3. Chapter meetings as continuation of community consensus building

• The chapter meeting is a continuation of traditional family, neighborhood and council gatherings where everyone had the opportunity to speak, and decisions were reached through consensus. Downey v. Bigman, 7 Nav. R. 176 (Nav. Sup. Ct. 1995).

II. Legislation relating to the operation of government

A. Ethics in government

1. Prohibited conduct

a) Claiming salaries while performing elected duties

• Navajo Nation employees who are also elected officials are prohibited from claiming a salary while attending a meeting as an elected official, and are required to take annual leave or leave without pay to tend to their elected position duties. Barton v. Navajo Nation Ethics and Rules Office, 8 Nav. R. 353 (Nav. Sup. Ct. 2003).

• Navajo Nation employees are not entitled to pay based upon “flex-time” while attending to elected duties. Barton v. Navajo Nation Ethics and Rules Office, 8 Nav. R. 353 (Nav. Sup. Ct. 2003).

b) Conflicts of interest

• Government employees are prohibited from conduct which creates an appearance of: 1. Using public office for private gain; 2. Giving preferential treatment to any special interest organization or person; 3. Impeding governmental efficiency or economy; 4. Losing or compromising complete independence or impartiality of action; 5. Making a government decision outside official channels; or 6. Adversely affecting the confidence of the people in the integrity of the government of the Navajo Nation. Kirk v. ONLR, 7 Nav. R. 363 (Nav. Sup. Ct. 1998).

• Governmental employee seeing a conflict of interest must report the conflict to his superior and to the Ethics and Rules Committee. The Committee shall then assign the investigative functions to an individual who does not have a conflict of interest. Kirk v. ONLR, 7 Nav. R. 363 (Nav. Sup. Ct. 1998).

• (1) Public officials shall not (Al) have direct or indirect (A2) financial or other economic interest, nor engage in employment or an economic activity which (A3) necessarily involves (A4) inherent substantial conflict, or appears to have a substantial conflict (A5) with official responsibilities or duties. Navajo Nation v. MacDonald, 6 Nav. R. 432 (Nav. Sup. Ct. 1991).

• This statute prohibits any conflict of interest, defined as having a direct or indirect interest in an activity which creates, or appears to create, a substantial conflict with the duties of office. It requires proof of an interest or stake in an activity which conflicts with one's duty to serve the public and not use the public position for personal gain. Navajo Nation v. MacDonald, 6 Nav. R. 432 (Nav. Sup. Ct. 1991).

• (1) When a public official is required to take official action (2) on a matter in which the official has a personal economic interest, (3) the official must first consider eliminating the interest, but if that is not feasible (under another section), (B1) must abstain from sponsoring, influencing or in any manner attempting (B2) to influence any decision or determination (B3) which would favor or advance the official's personal economic interest. Section 3753(e) (1) (C) requires a public official with an interest to (Cl) abstain from voting or participating in the decision or determination (C2) unless otherwise directed by the authorized presiding official of the body making the decision or determination (C3) or otherwise required by law, (C4) or unless the official's vote, position, recommendation or participation is contrary to his personal economic interest. Navajo Nation v. MacDonald, 6 Nav. R. 432 (Nav. Sup. Ct. 1991). Note: this holding is presented in strikeout format because it refers to 2 N.N.C. § 3753, which has been abrogated. Abstention from official action where conflicts exist is now addressed at 2 N.N.C. § 3748. Reference should be made to the current statute.

• 2 N.N.C. § 3753(e)(1)(B) prohibits a public official who has a financial interest in a proposed deal with the Navajo Nation from influencing or taking part in a decision which would give him economic benefit. Subsection (e)(1)(C) prohibits an official with an economic benefit from participating in a possibly beneficial governmental decision unless a superior directs participation, or it is required by law, or the official takes a stand contrary to his own interest. Navajo Nation v. MacDonald, 6 Nav. R. 432 (Nav. Sup. Ct. 1991). Note: this holding is presented in strikeout format because it refers to 2 N.N.C. § 3753, which was abrogated. Conflicts of interest are now addressed at 2 N.N.C. § 3748. Reference should be made to the current statute.

c) Accepting private benefits for performing public duties

• (1) Public officials are prohibited from (2) soliciting or accepting for themselves or another (3) any gift (including an economic opportunity, favor, service, or loan; excluding loans from a regular lending institution, on generally available terms) or other benefit worth $100 or more in any calendar year (4) from any person, organization or group which (Al) has, or is seeking to obtain (A2) contractual or other business or financial relationships or approval from any office with which the public official is associated or employed; or (CI) has any interest which (C2) within two years, (C3) has been directly involved with, or affected by, the performance or nonperformance of any official act or duty of the official or the official's office (by association or employment) or (C4) which the public official knows or has reason to believe is likely to be so involved or affected. Navajo Nation v. MacDonald, 6 Nav. R. 432 (Nav. Sup. Ct. 1991). Note: this holding is presented in strikeout format because it refers to 2 N.N.C. § 3753, which has been abrogated. Prohibited gifts and loans are now addressed at 2 N.N.C. § 3756. Reference should be made to the current statute.

• The gist of the prohibited conduct as to those who want to do business with the Navajo Nation is that a public official must not accept anything of the value of $100 or more from them in a given year, if the business wants to get something from the official's office. This is designed to prevent gifts or benefits to officials who may later be in a position to favor the giver. Navajo Nation v. MacDonald, 6 Nav. R. 432 (Nav. Sup. Ct. 1991).

• The gist of the prohibition for those who have done business or gotten benefit from the Navajo Nation within the past two years is that a public official may not accept a gift or benefit where the official, or his office dealt with the giver, or the official knows or has reason to know about the involvement. Navajo Nation v. MacDonald, 6 Nav. R. 432 (Nav. Sup. Ct. 1991).

• The statute prohibits the practice of businesses that have done business with the Navajo Nation giving a gift or benefit to influence continued favors. Navajo Nation v. MacDonald, 6 Nav. R. 432 (Nav. Sup. Ct. 1991).

• To establish that a public official has received illegal gifts or benefits, the Navajo Nation must prove the identity of the official, the identity of the giver, and the nature of the gift or benefit. Navajo Nation v. MacDonald, 6 Nav. R. 432 (Nav. Sup. Ct. 1991).

• One cannot utiltize public office for private gain. Navajo Nation v. MacDonald, 6 Nav. R. 432 (Nav. Sup. Ct. 1991).

2. Procedure of the Ethics and Rules Committee

• Ethics and Rules Committee rule requiring Navajo words to be translated into English for the record did not require Committee to make a translator available at a hearing. Barton v. Navajo Nation Ethics and Rules Office, 8 Nav. R. 353 (Nav. Sup. Ct. 2003).

B. Privacy and access to public records

1. General descriptions of the Privacy Act

• The Privacy Act sets up procedures by which the general public has a means to access records and information relating to the operation of the Navajo Nation while preserving the privacy interests of individuals and entities. Department of Child Support Enforcement v. Logg, No. SC-CV-22-06, slip op. (Nav. Sup. Ct. August 24, 2006).

• The Privacy Act attempts to regulate access to “records,” defined as certain documents and other physical objects held by government offices. It divides records into two main categories. The first category is “records that must be disclosed,” or “public records,” and the second is records that cannot be disclosed, or “protected records.” Department of Child Support Enforcement v. Logg, No. SC-CV-22-06, slip op. (Nav. Sup. Ct. August 24, 2006).

2. Public access to records

• Generally information on court proceedings is open to the public, so that the Navajo people may know what its courts are doing. Johnson v. Tuba City Dist. Ct., No. SC-CV-12-07, slip op. (Nav. Sup. Ct. December 7, 2007).

• The Privacy Act further divides "public records" into two apparently separate categories: records that are public “except to the extent they contain information expressly permitted to be treated as protected as provided for in 2 N.N.C. § 85,” and records that are “normally public, but to the extent that a record is expressly exempt from disclosure, access may be restricted under 2 N.N.C. § 85.” Department of Child Support Enforcement v. Logg, No. SC-CV-22-06, slip op. (Nav. Sup. Ct. August 24, 2006).

• Section 84(B)(11) of the Privacy Act identifies certain records that are “normally public”: “[r]ecords which would disclose information relating to formal charges or disciplinary action against a past or present governmental entity employee if: (a) The disciplinary action has been completed and all time periods for administrative appeal have expired; and (b) The formal charges

were sustained.” Department of Child Support Enforcement v. Logg, No. SC-CV-22-06, slip op. (Nav. Sup. Ct. August 24, 2006).

• The list of “public records” in Section 84 of the Act cannot be used to bar access to other records by negative implication. Department of Child Support Enforcement v. Logg, No. SC-CV-22-06, slip op. (Nav. Sup. Ct. August 24, 2006).

• Section 84(B)(11) is unlike any of the other categories of “public records.” It allows access to government employee records only after disciplinary action is complete and only when the government employer prevails. Department of Child Support Enforcement v. Logg, No. SC-CV-22-06, slip op. (Nav. Sup. Ct. August 24, 2006).

• The Privacy Act lists a total of twenty-two types of records that are public, but also states that the list of public records is not exhaustive and should not be used to limit access to records. This promotes transparency in government and prohibits the government from claiming a “negative” implication relating to records that are not on the list. Department of Child Support Enforcement v. Logg, No. SC-CV-22-06, slip op. (Nav. Sup. Ct. August 24, 2006).

3. Privacy for certain records

• The Navajo Nation Code prohibits court staff from distributing certain types of court information, requires certain proceedings to be closed to the public, and prohibits certain people from revealing information concerning specific types of cases. Johnson v. Tuba City Dist. Ct., No. SC-CV-12-07, slip op. (Nav. Sup. Ct. December 7, 2007).

4. Labor Commission proceedings

• The Privacy Act does not regulate access to Labor Commission proceedings, regardless of whether Commission records are covered by Section 84. Department of Child Support Enforcement v. Logg, No. SC-CV-22-06, slip op. (Nav. Sup. Ct. August 24, 2006).

• Section 84(B)(11) does not apply to Labor Commission records, but only to records concerning Navajo governmental employee grievances. Department of Child Support Enforcement v. Logg, No. SC-CV-22-06, slip op. (Nav. Sup. Ct. August 24, 2006).

• The Privacy Act’s provisions relating to employee grievances do not extend to Labor Commission proceedings. Department of Child Support Enforcement v. Logg, No. SC-CV-22-06, slip op. (Nav. Sup. Ct. August 24, 2006).

C. Procurement Act

• The Procurement Act was created to enforce the Navajo Nation Collection System in the best interests of the Navajo Nation. PC&M Const. Co. v. Navajo Nation, 7 Nav. R. 96 (Nav. Sup. Ct. 1994).

• If a business has an outstanding money judgment against it in favor of the Navajo Nation upon due notice the Navajo Nation may offset its money claim against any amount it owes to or has account payable to the business. PC&M Const. Co. v. Navajo Nation, 7 Nav. R. 96 (Nav. Sup. Ct. 1994).

• The Procurement Act does not exclude judgments from offset proceedings entered in favor of the Nation acting in an ex relatione capacity. PC&M Const. Co. v. Navajo Nation, 7 Nav. R. 96 (Nav. Sup. Ct. 1994).

III. The operation of the Navajo Nation Government

A. Overall nature of government

1. General responsibilities of all public officials

• A Navajo leader cannot hand over a duty on a matter that impacts the people to a third person; otherwise it would be considered a betrayal of trust. Begay v. Alonzo, No. SC-CV-40-08, slip op. (Nav. Sup. Ct. November 7, 2008).

• All public officials in the Nation have a fiduciary responsibility to the Navajo people to execute the trust the People have placed with them in the administration of the government. Thinn v. Navajo Generating Station, Nos. SC-CV-25-06 and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007).

• Under Fundamental Law, the leaders do not ever lay down this trust and the laws because a leader is taught that they must find the solution, for it is always available. Thinn v. Navajo Generating Station, Nos. SC-CV-25-06 and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007).

• As demonstrated in the design of the sacred wedding basket, a leader, through adherence to the laws, the analysis of the stories of the Diné journey, and a positive approach will find a solution (bi’2’iídzá) around, through, or over that which confronts the people. Thinn v. Navajo Generating Station, Nos. SC-CV-25-06 and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007).

• In Navajo society, the integrity of the government is the key to its viability. If the governed cannot trust that their government is essentially just and accountable, then there arises widespread belief that the government benefits only a few. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• A Navajo leader can be relieved of authority if he betrays the people's interests. A leader is judged by his actions, and if he has betrayed the public trust placed in him, punishment follows. Navajo Nation v. MacDonald, Sr., 6 Nav. R. 432 (Nav. Sup. Ct. 1991).

2. Color of official authority

• Navajo tradition protects a person clothed with authority in the exercise of that authority until the person actually knows he or she has been relieved of authority. Navajo Nation v. Platero, 6 Nav. R. 422 (Nav. Sup. Ct. 1991).

• There is no liability where a public official obeys the lawful command of the government or if an official carries out the imperative duty of obeying an order of a superior in good faith. Navajo Nation v. Platero, 6 Nav. R. 422 (Nav. Sup. Ct. 1991).

3. Power comes from the Navajo people

• The government of the Navajo Nation belongs to the Navajo people. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• A government cannot operate effectively unless the citizenry has confidence in its government. Public confidence comes when citizens believe that their government can protect them from tyranny and from violations of their rights. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

4. Tripartite government

• The Navajo Nation government is comprised of three co-equal branches, each with its own area of responsibility and limitations of power. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• Prior to the Title II Amendments, the Navajo Nation government operated as a two-branch government: the Legislative and Judicial Branches. Under that scheme, the Navajo Tribal Council controlled both the legislative and executive functions of government. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• The Chairman of the Navajo Tribal Council was the chief legislative officer as well as the chief executive officer. This unilateral control left no room for the exercise of checks and balances. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• The Navajo Nation Council undertook the Title II Amendments which separated governmental powers into three separate and equal branches. The lack of definition of power and separation of legislative and executive also overly involve itself in the administration of programs thereby demonstrating the need to limit the legislative function to legislation and policy decision making and further limit the executive function to implementation of laws and representation of the Navajo Nation. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• In the statement of the purposes of the Title II Amendments, the legislature made clear its intent to establish three separate branches of government in order to decentralize power, limit the functions and powers of each branch, and provide for checks and balances among the branches. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

5. Separation of powers

a) Fundamental

• The principles of separation of powers and checks and balances were the catalyst that moved the Council to reorganize the Navajo Nation government; thus, these principles are fundamental to Navajo governmental operations. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• The leaders who debated and enacted the Title II Amendments were adamant that the reorganized government would function according to principles of separation of powers and checks and balances. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• It is an ingrained principle in our government that the three departments of government are coordinate and shall co-operate with and complement, and at the same time act as checks and balances against one another but shall not interfere with or encroach on the authority or within the province of the other. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• It is abhorrent to the principles of our legal system and to our form of government that courts, being a coordinate department of government, should be compelled to depend upon the vagaries of an extrinsic will. Such would interfere with the operation of the courts, impinge upon their power and thwart the effective administration of justice. These principles, concepts, and doctrines are so thoroughly embedded in our legal system that they have become bone and sinew of our state and national polity. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

b) Purposes of doctrine

• The separation of powers and checks and balances contained in our government provide mechanisms for addressing corruption, abuses of discretion, and lapses of judgment. They prevent each branch from exercising unfettered discretion. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• If one branch oversteps its powers, and infringes on the role of another branch, the integrity of the government is ruined. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

c) Diné Bi Beenahaz’áanii

• Separation of functions is a concept that is so deeply rooted in Navajo culture that it is accepted without question. It is essential to maintaining balance and harmony. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• For instance, a Navajo medicine man or woman will perform his or her ceremony in a certain way. The manner in which a ceremony is conducted is left to the medicine man or woman performing the ceremony, guided by the holy people. It is not acceptable for one medicine person to tell another how to conduct a ceremony. Any infringement destroys the healing powers of the ceremony. Thus, the prohibition on such intrusions is absolute. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• When a medicine man or woman oversteps his or her authority and does not perform a ceremony properly, that ceremony is ruined irreparably. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

d) Branches may not interfere with another branch’s core functions

• The doctrine of separation of powers prevents the Council from interfering with certain core functions of the Judicial Branch. Under this doctrine, recognized as a fundamental principle of Navajo Nation government through Title Two of the Code, the Navajo Nation Council acts improperly when it interferes with the Judicial Branch’s duty to hear and decide cases independently. Eriacho v. Raman Dist. Ct., 8 Nav. R. 598 (Nav. Sup. Ct. 2004).

• Separation of powers ensures that the Judiciary has the authority to exercise necessary and essential functions unencumbered by outside interference, just as the Legislative and Executive Branches have certain essential functions unencumbered by judicial interference. Eriacho v. Raman Dist. Ct., 8 Nav. R. 598 (Nav. Sup. Ct. 2004).

• There are certain circumstances in which the prohibition against infringement by one branch into the workings of another is absolute. No branch of the Navajo Nation government can perform or infringe on the essential functions of another branch. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

e) Specific applications of separation of powers

(1) Core functions of the Judicial Branch

• Under the doctrine of separation of powers, the Council may not give discretion to the Attorney General that interferes with the functions of the Court. Eriacho v. Raman Dist. Ct., 8 Nav. R. 598 (Nav. Sup. Ct. 2004).

• The Council absolutely may not act as an appellate body over the judgments of the courts, nor can it pass legislation for the specific purpose of altering a party’s court-granted right. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• One of the basic tenets which derives from the doctrine of separation of powers is judicial independence. The judiciary's function is to render judgments and to enforce its judgments and orders. No other branch or office of the government may legally interfere with the judiciary's duty to render judgments and enforce judgments in any way. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• Likewise, no other branch, office, or entity of the government may influence a court with the intent of altering its decision. Outcomes of cases that are before the courts must be free of any form of political influence. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• Justice for the Navajo people means the courts’ decisions must be free of influence or pressure from the Executive and Legislative Branches. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• The activities of other branches of government are illegal only when they interfere with a court’s duty to hear and decide cases independently. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• Statute which gives the Board of Election Supervisors power to interpret Navajo election law expressly states that such interpretation must be consistent with Navajo law. The Supreme Court may review whether the interpretation was consistent with Navajo law. This reading of the plain words of the statute avoids the difficulty of finding that there has been an unlawful delegation of power to a legislative entity, violating the principle of separation of powers. Pioche v. v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 360 (Nav. Sup. Ct. 1991).

• When the Council reenacted the Board of Election Supervisors’ powers, it did so in a law which firmly established the separation of governmental powers. If the Board had the final power to interpret a part of the law of the Navajo Nation, that would infringe upon the plenary power of the courts to do so. Pioche v. v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 360 (Nav. Sup. Ct. 1991).

• The executive may not impose personnel policies on the judiciary, because that would interfere with the independence of the judiciary. Gudac v. Marianito, 1 Nav. R. 385 (Nav. Ct. App. 1978).

(2) Core functions of the Legislative Branch

• The doctrine of separation of powers in our Navajo form of government prevents this Court from setting rules that directly contradict a clear mandate of the Council. Fort Defiance Housing Corp. v. Allen, 8 Nav. R. 492 (Nav. Sup. Ct. 2004).

• The judiciary absolutely may not infringe upon the Council's essential function of enacting legislation. Our courts cannot make statutory law. They are limited to interpreting those laws as passed by the Council. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

(3) Core functions of the Executive Branch

• The Supreme Court cannot apply the court system's procedural rules to proceedings before an administrative agency because that would violate the doctrine of separation of powers. Staff Relief v. Polacca, 8 Nav. R. 49 (Nav. Sup. Ct. 2000).

• An administrative agency cannot certify a question to this Court because that would violate separation of powers principles as well as their own powers. In re Nav. Bd. of Elec. Supervisors, 6 Nav. R. 302 (Nav. Sup. Ct. 1990). Note: this holding is presented in strikeout format because it

was overruled in Matter of Two Initiative Petitions, No. SC-CV-41-08, slip op. (Nav. Sup. Ct. July 18, 2008).

(4) Chapters

• When enacting the Local Governance Act, the Council clearly intended that the Navajo Nation's policy of separation of powers and checks and balance be implemented at the local government level. Matter of Termination of Yazzie, Nos. SC-CV-37-05 and SC-CV-42-05, slip op. (Nav. Sup. Ct. June 14, 2007).

6. Checks and balances

• Checks and balances are equally important in the operations of government. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• Checks and balances promote accountability within each branch by preventing abuses of discretion and power. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• While the three branches remain separate, they exercise certain review functions over one another. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• These checks and balances are evident throughout the Title II Amendments. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• For instance, oversight committees (legislative entities) monitor, coordinate and oversee the activities of the non-legislative branches. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• The Budget and Finance Committee (legislative entity) reviews and recommends to the Council the proposed budgets for all branches (including the Judicial Branch) and entities of the Navajo Nation. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• All proposed resolutions of the Councilor its committees (including the Judiciary Committee) must follow a process by which they are reviewed and signed by representatives of at least two of the branches. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• Checks and balances are as fundamental to the Navajo Nation government as is the doctrine of separation of powers. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

B. Operation of the Executive Branch

1. Generally

• The legislative and executive departments have their functions and their exclusive powers, including the ‘purse’ and the ‘sword.’ Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

2. Operation of the Attorney General

• If the Attorney General determines that he/she is disqualified from providing legal representation or legal services on behalf of any entity of the Navajo Nation government in relation to any matter, the Attorney General shall give written notification to the entity affected. If the entity has received such notification from the Attorney General, the entity is authorized to make expenditures, subject to available appropriations, to employ attorneys to provide the representation services. Eriacho v. Raman Dist. Ct., 8 Nav. R. 598 (Nav. Sup. Ct. 2004).

• This provision anticipates the situation where the Department of Justice is disqualified from representing a party in situations such as when a clear conflict of interest exists because the Department already represents a separate party to the litigation. Eriacho v. Raman Dist. Ct., 8 Nav. R. 598 (Nav. Sup. Ct. 2004).

• Language giving the Attorney General the final say on whether a conflict of interest exists violates the Court’s power to regulate the bar. Eriacho v. Raman Dist. Ct., 8 Nav. R. 598 (Nav. Sup. Ct. 2004).

3. Limitations on power

• Neither the President nor the Vice-President can have their salaries adjusted without a referendum vote in their favor. Judy v. White, 8 Nav. R. 769 (Chin. Dist. Ct. 2002).

• The President or Vice-President may receive a pay raise if enacted by the Council based upon the recommendation of the Commission on Navajo Government Development. However, the Commission is prohibited from recommending such a pay raise. Judy v. White, 8 Nav. R. 769 (Chin. Dist. Ct. 2002).

C. Operation of the Legislative Branch

1. General duties of Legislative Branch

• The Council, being the People's servant and agent, has the responsibility of executing the trust of the Navajo people. Thinn v. Navajo Generating Station, Nos. SC-CV-25-06 and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007).

• The Council works for and on behalf of the People in their role as naat’áanii in the Naat’ájí Nahat’ááh (Legislative Branch). The Council legislates in the best interest of the People. Thinn v. Navajo Generating Station, Nos. SC-CV-25-06 and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007).

• It is central and foremost that the Council protects the rights of the tribe and its government. The duty to protect the government is essential, for it is through the government that the People exercise their inherent right of self-government, including conducting the business of government with other governments and regulating and approving the use or disposition of the People's communal property – the land and its resources. Thinn v. Navajo Generating Station, Nos. SC-CV-25-06 and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007).

• The Council, as the people's servant, is presumed to act in the best interests of the people. Thompson v. Navajo Nation, 6 Nav. R. 320 (Nav. Sup. Ct. 1990).

2. Policy and law making power

• The Council is ultimately the policy-making body of the Nation. Cedar Unified School Dist. v. Nav. Nat. Labor Comm’n, Nos. SC-CV-53-06 and SC-CV-54-06, slip op. (Nav. Sup. Ct. November 21, 2007).

• Great responsibilities are placed upon the Council. Through legislation it creates offices and duties and responsibilities of officials. Through legislative oversight it ensures the proper execution of these duties and responsibilities. Thinn v. Navajo Generating Station, Nos. SC-CV-25-06 and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007).

• It is ultimately the responsibility of the Navajo Nation Council to make policy for the Navajo people, and the responsibility of the Court to apply it when clear and valid. Tso v. Navajo Housing Auth., 8 Nav. R. 548 (Nav. Sup. Ct. 2004).

• The legislative and executive departments have their functions and their exclusive powers, including the ‘purse’ and the ‘sword.’ Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• Supreme law making authority on the Navajo Nation is vested in the Council. Halona v. MacDonald, 1 Nav. R. 341 (Nav. Ct. App. 1978).

• The Navajo Nation is not a lawless nation. Its governmental powers are limited by laws – laws enacted by the congress of the United States, by the Navajo Tribal Council (codified in the Navajo Tribal Code) and the Treaty of 1868. Halona v. MacDonald, 1 Nav. R. 341 (Nav. Ct. App. 1978).

3. Waiver of governmental authority

• When dealing with the sovereign powers of the Nation, only clear, unmistakable words of the Council or its properly empowered designee can waive governmental authority. Thinn v. Navajo Generating Station, Nos. SC-CV-25-06 and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007).

• To decide whether an alleged waiver is unmistakable, the Court looks to the language of the purported waiver, the agreement as a whole, and the legal context within which the agreement was entered. Thinn v. Navajo Generating Station, Nos. SC-CV-25-06 and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007).

• To be unmistakable there can be no ambiguity, and if there is any question of the intended meaning of a term there can be no waiver. Thinn v. Navajo Generating Station, Nos. SC-CV-25-06 and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007).

• A contractual term cannot have an “unmistakable” meaning where (1) it is not defined in the contract; (2) it is susceptible to more than one meaning; and (3) another contractual provision covers the same issues. Thinn v. Navajo Generating Station, Nos. SC-CV-25-06 and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007).

• A sovereign’s police powers, an essential attribute of sovereignty, cannot be surrendered by contract. Thinn v. Navajo Generating Station, Nos. SC-CV-25-06 and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007).

• There is no unmistakable waiver in the lease, where such waiver is inconsistent with Navajo principles of leadership responsibility to the people. Thinn v. Navajo Generating Station, Nos. SC-CV-25-06 and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007).

• Sovereign power, even when unexercised, is an enduring presence that governs all contracts subject to the sovereign's jurisdiction, and will remain intact unless surrendered in unmistakable terms. N.C.C. v. Navajo Tax Comm’n, 6 Nav. R. 366 (Nav. Sup. Ct. 1991).

• Congress could validly require the approval of the Secretary of the Interior before any Tribal resolution becomes effective. However, it does not follow that the Navajo Tribal Council may, on its own initiative, abdicate its legislative function to any other authority or body. A weaker power does not surrender its independence and its right to self government by associating itself with a stronger power and accepting its protection. Navajo Tribe v. Holyan, 1 Nav. R. 78 (Nav. Ct. App. 1973).

• The sovereign power of the Navajo Nation has been delegated to the Council by the members of the Navajo Nation; the Council may not abdicate its powers of self government the absence of a treaty or the clearly expressed constraint of the dominant sovereignty. Navajo Tribe v. Holyan, 1 Nav. R. 78 (Nav. Ct. App. 1973).

4. Location of meeting of the Council

• All regularly scheduled or special meetings of the Navajo Tribal Council shall be held at the Navajo Tribal Council Chambers located at Window Rock, Arizona with the following exceptions: (1) If the Chairman of the Navajo Tribal Council shall declare by written statement that the Chambers at Window Rock are unsuitable for meeting, whether because of fire, physical damage, remodeling or other cause, the Chairman shall designate an alternate meeting place in or near Window Rock, and he shall give reasonable notice to all Council delegates of such fact. (2) A majority of all Council delegates may agree to hold a meeting in some location other than the Chambers at Window Rock. Such agreement may be by written petition or by motion at any regular or special session of the Navajo Tribal Council. Thompson v. Navajo Nation, 6 Nav. R. 320 (Nav. Sup. Ct. 1990).

5. Spending

• Monies spent by the Navajo Nation Council are actually the monies of the Navajo people. Judy v. White, 8 Nav. R. 769 (Chin. Dist. Ct. 2002).

• All monies spent by the Navajo Tribal Council are monies of the Navajo People. Halona v. MacDonald, 1 Nav. R. 189 (Nav. Ct. App. 1978).

6. Limits on power

• Navajo Nation council may not grant a pay raise to its members without a two-thirds ratification of the chapters approving one. Judy v. White, 8 Nav. R. 769 (Chin. Dist. Ct. 2002).

• Council Delegates may approve a pay raise based upon the recommendation of the Commission on Navajo Government Development. However, the Commission is prohibited from recommending such a pay raise. Judy v. White, 8 Nav. R. 769 (Chin. Dist. Ct. 2002).

D. Operation of the Judiciary Branch

• The Judicial Branch was originally created as a separate branch in 1959. It was later reestablished as a separate branch by the Navajo Nation Judicial Reform Act of 1985. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• The judiciary has its exclusive powers and functions, to-wit: it has judgment and the power to enforce its judgments and orders. In their responsibilities and duties, the courts must have complete independence. It is not only axiomatic; it is the genius of our government that the courts must be independent, unfettered, and free from directives, influence, or interference from any extraneous source. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• The judiciary has a great deal of administrative functions which support its essential function of deciding cases. For instance, the Judicial Branch operates various divisions and departments, including the peacemaker division, probation services, branch administration, and district administration. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• A great deal of administrative and technical support is necessary to operate the courts so that they may perform their essential function. The Branch must employ court clerks, probation officers, court administrators, computer service personnel, secretaries, and others to assist the judges and justices in rendering judgments and enforcing their judgments and orders. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• The Judicial Branch must be unfettered in its performance of its duty to administer justice. In order to fulfill that responsibility, the Judicial Branch must have the power to control personnel who operate the courts, but that power can be checked to some degree. It may be checked only to the extent that administration of justice is not threatened. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• By virtue of Navajo law, this Court is within a separate branch of the Government of the Navajo Nation. The Navajo Nation has a three-branch government, and each branch has a duty to abstain from, and to oppose, encroachment on any other. In re Nav. Bd. of Elec. Supervisors, 6 Nav. R. 302 (Nav. Sup. Ct. 1990).

E. Operation of chapters

• A person may not serve as a chapter official and a chapter employee at the same time. Matter of Termination of Yazzie, Nos. SC-CV-37-05 and SC-CV-42-05, slip op. (Nav. Sup. Ct. June 14, 2007).

• Chapter administrators have their functions and chapter elected officials must recognize than they should restrict themselves to policy and stay out of administrative matters. Matter of Termination of Yazzie, Nos. SC-CV-37-05 and SC-CV-42-05, slip op. (Nav. Sup. Ct. June 14, 2007).

• Chapter officials have the role of making policy that governs the direction of the chapter. Matter of Termination of Yazzie, Nos. SC-CV-37-05 and SC-CV-42-05, slip op. (Nav. Sup. Ct. June 14, 2007).

• Chapter employees have the role of rendering services that carry out and administer those policies set by the chapter officials. Matter of Termination of Yazzie, Nos. SC-CV-37-05 and SC-CV-42-05, slip op. (Nav. Sup. Ct. June 14, 2007).

• The prohibition of anyone individual serving as both chapter official and chapter employee at the same time ensures that the chapter is governed with responsibility and accountability to the local citizens. Matter of Termination of Yazzie, Nos. SC-CV-37-05 and SC-CV-42-05, slip op. (Nav. Sup. Ct. June 14, 2007).

• The Local Governance Act defines chapter employee as “any person or entity working for, or rendering or exchanging any services or performing any act for or on behalf of the chapter in return for any form of payment or other compensation or thing of value received or to be received at any time temporarily, permanently or indefinitely, in any capacity.” Matter of Termination of Yazzie, Nos. SC-CV-37-05 and SC-CV-42-05, slip op. (Nav. Sup. Ct. June 14, 2007).

• Community Services Coordinators are responsible for the administration of the chapter. They also perform the duties of a Chapter Manager until the Chapter formally hires a Chapter Manager. Matter of Termination of Yazzie, Nos. SC-CV-37-05 and SC-CV-42-05, slip op. (Nav. Sup. Ct. June 14, 2007).

• The Chapter Manager, as defined by the LGA, is specifically charged with chapter administration. Chapter administration requires rendering services and performing acts for and on behalf of the chapter. Matter of Termination of Yazzie, Nos. SC-CV-37-05 and SC-CV-42-05, slip op. (Nav. Sup. Ct. June 14, 2007).

F. Commission on Navajo Government Development

• The Commission on Navajo Government Development is not permitted to recommend pay raises for the President, Vice-President or for Council Delegates. Judy v. White, 8 Nav. R. 769 (Chin. Dist. Ct. 2002).

• The Commission on Navajo Government Development was established to, among other things, help ensure an accountable and responsible government. Judy v. White, 8 Nav. R. 769 (Chin. Dist. Ct. 2002).

• The Commission on Navajo Government Development has the power to review, evaluate and recommend laws to develop a comprehensive system of government for the Navajo People. Judy v. White, 8 Nav. R. 769 (Chin. Dist. Ct. 2002).

• The Commission on Navajo Government Development is required to encourage the public, private and public organizations, chapters, traditional Navajo leaders, including Native ceremonial practitioners (medicinemen), to actively participate in carrying out the purposes of the Commission and to conduct public hearings. Judy v. White, 8 Nav. R. 769 (Chin. Dist. Ct. 2002).

• The Commission on Navajo Government Development must give public notice of its meetings and it must get the word out to permit public participation and commentary on the issues. Judy v. White, 8 Nav. R. 769 (Chin. Dist. Ct. 2002).

• The Commission on Navajo Government Development must give due consideration to traditional values and the philosophical views of the Navajo People in making its decisions. Judy v. White, 8 Nav. R. 769 (Chin. Dist. Ct. 2002).

• The Commission on Navajo Government Development violated Navajo Common Law because while it was required to be open, transparent, inclusive and to actively consider public opinion in making its decision, it did not do so. Judy v. White, 8 Nav. R. 769 (Chin. Dist. Ct. 2002).

IV. Taxation

A. Navajo Nation’s power to tax

1. In general

• The power to tax is an essential attribute of Indian sovereignty because it is a necessary instrument of self-government and territorial management. Blaze Const. v. Navajo Tax Comm’n, 7 Nav. R. 435 (Nav. Sup. Ct. 1999).

• The governmental power of a nation is not limited to the occupants of the lands in its country which the nation itself owns, but extends to all the inhabitants of its territory. Atkinson Trading Co., 7 Nav. R. 275 (Nav. Sup. Ct. 1997).

• The power to tax transactions occurring on trust lands and significantly involving a tribe or its members is a fundamental attribute of sovereignty which the tribes retain unless divested of it by federal law or necessary implication of their dependent status. Atkinson Trading Co., 7 Nav. R. 275 (Nav. Sup. Ct. 1997).

• The power to tax is an essential attribute of Indian sovereignty because it is a necessary instrument of self-government and territorial management. This power enables a tribal government to raise revenues for its essential services. The power does not derive solely from the Indian tribe's power to exclude non-Indians from tribal lands. Instead, it derives from the tribe's general authority, as sovereign, to control economic activity within its jurisdiction, and to defray the cost of providing governmental services by requiring contributions from persons or enterprises engaged in economic activities within that jurisdiction. Atkinson Trading Co., 7 Nav. R. 275 (Nav. Sup. Ct. 1997).

• The Navajo Nation has the inherent sovereign power to tax both members and non-members engaged in economic activities within its territorial borders. N.C.C. v. Navajo Tax Comm’n, 6 Nav. R. 366 (Nav. Sup. Ct. 1991).

• The Navajo Nation's taxing power is a necessary instrument of self-government and territorial management. N.C.C. v. Navajo Tax Comm’n, 6 Nav. R. 366 (Nav. Sup. Ct. 1991).

• This power to tax is not one granted to the Navajo Nation by the federal government. Rather, it is a fundamental attribute of tribal sovereignty which the Indian tribes retain unless divested of it by Congress or by necessary implication as a result of their dependent status. N.C.C. v. Navajo Tax Comm’n, 6 Nav. R. 366 (Nav. Sup. Ct. 1991).

• The power to tax is an essential attribute of Indian sovereignty because it is a necessary instrument of self-government and territorial management. This power enables a tribal government to raise revenues for its essential services. N.C.C. v. Navajo Tax Comm’n, 6 Nav. R. 366 (Nav. Sup. Ct. 1991).

• The power to tax derives from the tribe's general authority, as sovereign, to control economic activity within its jurisdiction, and to defray the costs of providing governmental services by requiring contributions from persons or enterprises engaged in economic activities within that jurisdiction. N.C.C. v. Navajo Tax Comm’n, 6 Nav. R. 366 (Nav. Sup. Ct. 1991).

• The power to tax members and non-Indians alike is surely an essential attribute of such self-government; the Navajos can gain independence from the Federal Government only by financing their own police force, schools and social programs. N.C.C. v. Navajo Tax Comm’n, 6 Nav. R. 366 (Nav. Sup. Ct. 1991).

2. Power to tax mining activities

• The Navajo Nation has the authority to tax any mining activities taking place in Indian country without violating any express federal jurisdictional prohibitions. Atkinson Trading Co., 7 Nav. R. 275 (Nav. Sup. Ct. 1997).

3. Power to tax non-Indians

• The general principle is Indian nations have the inherent power to tax using their general governmental authority, except to the extent Congress has expressly limited that power, and that governmental authority includes taxation of non-Indians who are present within Indian Country. Atkinson Trading Co., 7 Nav. R. 275 (Nav. Sup. Ct. 1997).

• Chief among the powers of sovereignty recognized as pertaining to an Indian tribe is the power of taxation. Except where Congress has provided otherwise, this power may be exercised over members of the tribe and over nonmembers, so far as such nonmembers may accept privileges of trade, residence, etc., to which taxes may be attached as conditions. Atkinson Trading Co., 7 Nav. R. 275 (Nav. Sup. Ct. 1997).

4. Power to tax non-Indians on fee land

• Company may be taxed where it enjoyed the substantial privilege of carrying on business within Navajo Nation jurisdiction, engaged in commercial activities with tribal members and enjoyed the benefit of governmental services. Atkinson Trading Co., 7 Nav. R. 275 (Nav. Sup. Ct. 1997). Note: this holding is presented in strikeout format because it was the subject of a permanent injunction by the United States Supreme Court in Atkinson Trading Co., Inc. v. Shirley, 532 U.S. 645 (2001).

• Taxation, that indispensable element of any government, surely has everything to do with the Navajo Nation's political integrity. A sovereign nation that cannot raise revenues to conduct governmental operations cannot function. Aside from the need to raise revenue to fund essential governmental services, taxation is a method of business regulation. A hotel occupancy tax is utilized to determine and project the number of tourist visits each year. Funds are then channeled

to those governmental programs which benefit tourists, including police and fire protection, medical treatment, health inspections, tourism, information, tourist facilities, and others. Atkinson Trading Co., 7 Nav. R. 275 (Nav. Sup. Ct. 1997). Note: this holding is presented in strikeout format because it was the subject of a permanent injunction by the United States Supreme Court in Atkinson Trading Co., Inc. v. Shirley, 532 U.S. 645 (2001).

• The economic security element is similar. The Navajo Nation is seeking self-reliance and economic security through taxation. Atkinson Trading Co., 7 Nav. R. 275 (Nav. Sup. Ct. 1997). Note: this holding is presented in strikeout format because it was the subject of a permanent injunction by the United States Supreme Court in Atkinson Trading Co., Inc. v. Shirley, 532 U.S. 645 (2001).

• The Navajo Nation's health and welfare interests are also implicated. The Navajo Nation assumed the responsibility of the Indian Health Service to assure public health in the form of housing code regulation, health inspections, and providing public health services to Atkinson's guests. The "welfare" interest is used here in the sense of protecting the public welfare, as has been previously elaborated in this opinion. Atkinson Trading Co., 7 Nav. R. 275 (Nav. Sup. Ct. 1997). Note: this holding is presented in strikeout format because it was the subject of a permanent injunction by the United States Supreme Court in Atkinson Trading Co., Inc. v. Shirley, 532 U.S. 645 (2001).

5. Withdrawal of taxing power

• Congress can divest the Navajo Nation of its inherent taxing power. N.C.C. v. Navajo Tax Comm’n, 6 Nav. R. 366 (Nav. Sup. Ct. 1991).

• There must be clear indications that a tribe's taxing power has been taken away. N.C.C. v. Navajo Tax Comm’n, 6 Nav. R. 366 (Nav. Sup. Ct. 1991).

• Even where the contract at issue requires payment of a royalty for a license or franchise, the government's power to tax remains unless it has been specifically surrendered in terms which admit of no other reasonable interpretation. N.C.C. v. Navajo Tax Comm’n, 6 Nav. R. 366 (Nav. Sup. Ct. 1991).

• A claim of contractual waiver from the Navajo Nation's taxing power cannot be sustained unless the language of the contract in question contains a precise, clear and unmistakable surrender of the Nation's taxing power. This strict standard is necessary because the taxing power is extremely important to the Navajo Nation. It is essential to the Nation's self-government, territorial management, and is vital to its very survival. N.C.C. v. Navajo Tax Comm’n, 6 Nav. R. 366 (Nav. Sup. Ct. 1991).

B. Due process issues

• Because exaction of a tax constitutes a deprivation of property, the government must provide procedural safeguards against unlawful exactions in order to satisfy the commands of due process. The government may choose to provide a form of pre-deprivation process, for example, by authorizing taxpayers to bring suit to enjoin imposition of a tax prior to its payment, or by allowing taxpayers to withhold payment and then interpose their objections as defenses in a tax enforcement proceeding initiated by the government. However, whereas we have described the root requirement of due process as being that an individual be given an opportunity for a hearing before he is deprived of any significant interest, it is well established that a government need not provide pre-deprivation process for the exaction of taxes. Blaze Const. v. Navajo Tax Comm’n, 7 Nav. R. 435 (Nav. Sup. Ct. 1999).

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

• A taxpayers' right to a fair opportunity to challenge the accuracy and legal validity of their tax obligation is provided for and codified at 24 N.N.C. § 131 [formerly 24 N.N.C. § 434(B)]. Blaze Const. v. Navajo Tax Comm’n, 7 Nav. R. 435 (Nav. Sup. Ct. 1999).

C. “Pay first, litigate later”

• The Navajo Nation's “pay first, litigate later” requirement serves the important public policy of protecting the financial viability of our sovereign government. The Navajo Nation's Business Activity Tax helps to pay for essential government operations and services for Navajos and non-Navajos on the Navajo Nation. Blaze Const. v. Navajo Tax Comm’n, 7 Nav. R. 435 (Nav. Sup. Ct. 1999).

D. Uniform Tax Administration Statute

• The Uniform Tax Administration Statute attempted to provide statutory rules applicable to all of the taxes imposed by the Navajo Nation. Blaze Const. v. Nav. Tax Comm’n, 7 Nav. R. 288 (Nav. Sup. Ct. 1997).

• The Uniform Tax Administration Statute provides a specific procedure for appeals from assessments, denials of refund, or other adverse action. Blaze Const. v. Nav. Tax Comm’n, 7 Nav. R. 288 (Nav. Sup. Ct. 1997).

E. Anti-injunction statute

• No suits for the purpose of restraining the assessment or collection of the taxes imposed under the Code shall be maintained in any court by any person, whether or not such person is the person against whom such taxes were assessed. All actions concerning the application of the Code shall be brought pursuant to 24 N.N.C. § 131. Blaze Const. v. Nav. Tax Comm’n, 7 Nav. R. 288 (Nav. Sup. Ct. 1997).

• The anti-injunction statute withdraws jurisdiction from the courts to entertain suits seeking injunctions prohibiting the collection of federal taxes. Blaze Const. v. Nav. Tax Comm’n, 7 Nav. R. 288 (Nav. Sup. Ct. 1997).

F. Types of Navajo taxes

1. Navajo Nation Hotel Occupancy Tax

• The Navajo Nation Hotel Occupancy Tax is imposed on all guests who rent hotel rooms within the exterior boundaries of the Navajo Nation. Atkinson Trading Co., 7 Nav. R. 275 (Nav. Sup. Ct. 1997).

• The hotel proprietor must collect, remit and report the tax to the Navajo Nation. Atkinson Trading Co., 7 Nav. R. 275 (Nav. Sup. Ct. 1997).

• The proprietor can keep one percent of the amount of the tax due as shown on the return as reimbursement for its tax collection costs. Atkinson Trading Co., 7 Nav. R. 275 (Nav. Sup. Ct. 1997).

• Anyone lodging on trust lands and Navajo Nation members lodging on non-Indian fee lands can be charged a Navajo Nation hotel tax. Atkinson Trading Co., 7 Nav. R. 275 (Nav. Sup. Ct. 1997).

2. Business Activity Tax

• The Business Activity Tax (24 N.N.C. §§ 401 through 445), was enacted by Navajo Tribal Council Resolution No. CAP-36-78 on April 28, 1978. The Navajo Tax Commission began assessing the tax on July 1, 1978. N.C.C. v. Navajo Tax Comm’n, 6 Nav. R. 366 (Nav. Sup. Ct. 1991).

• The Business Activity Tax is imposed on the source gains of a branch. N.C.C. v. Navajo Tax Comm’n, 6 Nav. R. 366 (Nav. Sup. Ct. 1991).

• A branch is any person including corporations, engaged in trade, commerce, manufacture, power production, or any other productive activity within the Navajo Nation. N.C.C. v. Navajo Tax Comm’n, 6 Nav. R. 366 (Nav. Sup. Ct. 1991).

• Source gains include the gross receipts of a branch from the sale of Navajo services. 24 N.N.C. § 404(B). N.C.C. v. Navajo Tax Comm’n, 6 Nav. R. 366 (Nav. Sup. Ct. 1991).

• Navajo services are all services performed within the Navajo Nation. N.C.C. v. Navajo Tax Comm’n, 6 Nav. R. 366 (Nav. Sup. Ct. 1991).

• Specific exemptions are granted to the Navajo Nation Government; any wholly owned subdivision or enterprise of the Navajo Nation Government; the federal government, if the tax is prohibited by federal law; and the salaries or wages of individual employees. N.C.C. v. Navajo Tax Comm’n, 6 Nav. R. 366 (Nav. Sup. Ct. 1991).

• The Navajo Nation exercises its power to tax in a number of ways. Title 24 of the Navajo Tribal Code establishes the Navajo Possessory Interest Tax, the Oil and Gas Severance Tax, and the Business Activity Tax.

• The Navajo Nation has the inherent power to impose its Business Activity Tax on non-members and without first obtaining approval from the Secretary of the Interior. N.C.C. v. Navajo Tax Comm’n, 6 Nav. R. 366 (Nav. Sup. Ct. 1991).

• The Business Activity Tax is calculated as a percentage of a corporation’s gross receipts. N.C.C. v. Navajo Tax Comm’n, 6 Nav. R. 366 (Nav. Sup. Ct. 1991).

V. Sovereign immunity

A. General principles

1. Navajo Nation is immune from suit absent valid waiver

• In general, governments are immune from suit. Stago v. Wide Ruins Community School, 8 Nav. R. 259 (Nav. Sup. Ct. 2002).

• Tribal sovereign immunity is retained unless waived. Stago v. Wide Ruins Community School, 8 Nav. R. 259 (Nav. Sup. Ct. 2002).

• Navajo Nation has power to assert and to waive sovereign immunity. Manuelito v. Kellogg, 6 Nav. R. 508 (W.R. Dist. Ct. 1989).

• The Navajo Nation retains all those attributes of sovereignty, which have not been taken away by Congress, or ceded by Treaties between the Navajo Nation and the United States. Johnson v. Navajo Nation, 5 Nav. R. 192 (Nav. Sup. Ct. 1987).

• The power to raise a defense of sovereign immunity, and to waive the doctrine of sovereign immunity, is still within the inherent sovereign powers of the Navajo Nation. Johnson v. Navajo Nation, 5 Nav. R. 192 (Nav. Sup. Ct. 1987).

• The Navajo Nation may not be sued without its consent. Johnson v. Navajo Nation, 5 Nav. R. 192 (Nav. Sup. Ct. 1987).

• An Indian Tribe is immune from suit unless Congress has specifically authorized the suit. Johnson v. Navajo Nation, 5 Nav. R. 192 (Nav. Sup. Ct. 1987).

• An Indian Tribe can consent to be sued. Johnson v. Navajo Nation, 5 Nav. R. 192 (Nav. Sup. Ct. 1987).

• Navajo Nation has impliedly adopted sovereign immunity and has only selectively abolished it. Keeswood v. The Navajo Tribe, 2 Nav. R. 46 (Nav. Ct. App. 1979).

• The Navajo Tribe cannot be sued without its consent. Keeswood v. The Navajo Tribe, 2 Nav. R. 46 (Nav. Ct. App. 1979).

• Navajo Tribe is protected by sovereign immunity. Davis v. Navajo Tribe, 1 Nav. R. 379 (Crwn. Dist. Ct. 1978).

2. Purpose of the Sovereign Immunity Act

• The Navajo Sovereign Immunity Act was passed to insure that people having legal claims against the Navajo Nation would have a means of presenting those claims in Navajo courts. Otherwise, legislative inaction might have compelled creating judicial waivers to the Navajo Nation's sovereign immunity. Johnson v. Navajo Nation, 5 Nav. R. 192 (Nav. Sup. Ct. 1987).

• The expressed intent of the Navajo Tribal Council is to redress injuries caused by the Navajo Nation. Johnson v. Navajo Nation, 5 Nav. R. 192 (Nav. Sup. Ct. 1987).

3. All issues resolved in favor of government

• All sovereign immunity issues must be resolved in favor of the Tribe. NHA v. Howard Dana & Assoc., 5 Nav. R. 157 (Nav. Sup. Ct. 1987).

4. Jurisdictional

• Sovereign immunity is a jurisdictional defense. Phillips v. Navajo Housing Auth., 8 Nav. R. 751 (Nav. Sup. Ct. 2005).

• Sovereign immunity is a jurisdictional issue, which does not have to be raised at trial, but may be raised for the first time on appeal. Navajo Nation v. Crockett, 7 Nav. R. 237 (Nav. Sup. Ct. 1996).

• Jurisdiction of the Trial Court of the Navajo Tribe shall not extend to any action against the Navajo Nation without its expressed consent. Johnson v. Navajo Nation, 5 Nav. R. 192 (Nav. Sup. Ct. 1987).

• Sovereign immunity is a jurisdictional issue, which does not have to be raised at trial, but may be raised for the first time on appeal. NHA v. Howard Dana & Assoc., 5 Nav. R. 157 (Nav. Sup. Ct. 1987).

5. Scope of immunity protection

a) Entities covered

(1) Navajo Housing Authority (NHA)

• Pursuant to Resolution No. CO-55-04, NHA has been added to the definition of the “Navajo Nation” in the Sovereign Immunity Act. Phillips v. Navajo Housing Auth., 8 Nav. R. 751 (Nav. Sup. Ct. 2005).

• Prior to the enactment of Resolution No. CO-55-04, the Court had clearly established that NHA had no sovereign immunity. Phillips v. Navajo Housing Auth., 8 Nav. R. 751 (Nav. Sup. Ct. 2005).

• Resolution No. CO-55-04 does not retroactively apply to cases pending against NHA at the time the Resolution was adopted. Phillips v. Navajo Housing Auth., 8 Nav. R. 751 (Nav. Sup. Ct. 2005).

• The Sovereign Immunity Act does not preclude claims against NHA. Navajo Housing Auth. v. Bluffview Resident Mgt. Corp., 8 Nav. R. 402 (Nav. Sup. Ct. 2003). Note: this holding is presented in strikeout format because NHA was added to the definition of the “Navajo Nation” in the Sovereign Immunity Act by Council Resolution No. CO-55-04.

• Sovereign immunity is waived as to NHA. NHA has not waived its immunity from levy and execution, but it has waived its immunity to the extent that funds have been promised to be available for a contract. Indian Construction Services v. NHA, 6 Nav. R. 502 (W.R. Dist. Ct. 1989). Note: this holding is presented in strikeout format because NHA was added to the definition of the “Navajo Nation” in the Sovereign Immunity Act by Council Resolution No. CO-55-04.

• NHA is not immune from suit, but certain of its assets may not be reached by execution. NHA v. Howard Dana & Assoc., 5 Nav. R. 157 (Nav. Sup. Ct. 1987). Note: this holding is presented in strikeout format because NHA was added to the definition of the “Navajo Nation” in the Sovereign Immunity Act by Council Resolution No. CO-55-04.

• NHA can waive its immunity from execution by contract. NHA v. Howard Dana & Assoc., 5 Nav. R. 157 (Nav. Sup. Ct. 1987). Note: this holding is presented in strikeout format because NHA was added to the definition of the “Navajo Nation” in the Sovereign Immunity Act by Council Resolution No. CO-55-04.

(2) Navajo Technical College

• In 1995, the Council formally made Navajo Technical College [formerly Crownpoint Institute of Technology] a part of the “Navajo Nation” for sovereign immunity purposes. Blaze Const. v. Crownpoint Inst. of Tech., 7 Nav. R. 296 (Nav. Sup. Ct. 1997).

• Navajo Technical College [formerly Crownpoint Institute of Technology] did not enjoy immunity before the 1995 Resolution. Blaze Const. v. Crownpoint Inst. of Tech., 7 Nav. R. 296 (Nav. Sup. Ct. 1997).

(3) Navajo Tribal Utility Authority (NTUA)

• NTUA, as an enterprise of the Navajo Nation, is immune from suit. Foster v. Lee, 3 Nav. R. 203 (W.R. Dist. Ct. 1982).

(4) Enterprises

• “Enterprises” and “entities” are different. The provision that includes “Navajo Enterprises” within sovereign immunity protection does not extend to all Navajo “entities.” Blaze Const. v. Crownpoint Inst. of Tech., 7 Nav. R. 296 (Nav. Sup. Ct. 1997).

• Enterprises of the Navajo Nation are immune from suit absent a waiver from the Navajo Nation. Navajo Nation v. Crockett, 7 Nav. R. 237 (Nav. Sup. Ct. 1996).

(5) Chapters

• Steamboat Chapter enjoys sovereign immunity. Nav. Engin. and Const. Auth. v. Noble, 5 Nav. R. 1 (Nav. Ct. App. 1984).

b) Persons covered

(1) Immunity does not extend to private individuals

• The immunity from suit belongs to the Navajo Nation. Private parties lack standing to use the Act against other private parties. Owens v. Sloan, 7 Nav. R. 215 (Nav. Sup. Ct. 1996).

(2) No protection for actions out of official capacity

• Officials acting out of their official capacity are not immune for the types of decisions protected by the Sovereign Immunity Act. Chapo v. Navajo Nation, 8 Nav. R. 447 (Nav. Sup. Ct. 2004).

• There cannot be liability for conduct simultaneously under theories of official conduct and personal conduct. Plaintiff must elect one theory. Chapo v. Navajo Nation, 8 Nav. R. 447 (Nav. Sup. Ct. 2004).

• Whether an official acted in his official capacity should be reviewed using these factors: (1) the position; (2) the action; (3) the authority and any restrictions; (4) the responsibilities as defined in a job description or in policies and procedures; (5) any instructions from superiors; (6) responsibilities and restrictions on leaders under Navajo common law. Chapo v. Navajo Nation, 8 Nav. R. 447 (Nav. Sup. Ct. 2004).

• Sovereign immunity does not apply to a lawsuit against a Tribal official when acting in his or her non-official capacity. MacDonald v. Yazzie, 6 Nav. R. 95 (Nav. Sup. Ct. 1989).

• Tribal officials who act outside the law are not protected by sovereign immunity. TBI Contractors, Inc. v. Navajo Nation, 6 Nav. R. 57 (Nav. Sup. Ct. 1988).

• An official of the government can be sued for exceeding his lawful authority. Keeswood v. The Navajo Tribe, 2 Nav. R. 46 (Nav. Ct. App. 1979).

• An official of the government can be sued for exceeding his lawful authority. Peterson v. Ford Motor Credit Co., 2 Nav. R. 17 (Nav. Ct. App. 1979).

• Sovereign Immunity does not protect officials of the Navajo Tribe where they are violating the law. Davis v. Navajo Tribe, 1 Nav. R. 379 (Crwn. Dist. Ct. 1978).

(3) No protection against subpoenas to determine if officials violated the law

• The Sovereign Immunity Act does not prevent a subpoena against a former Chairman to determine if he violated the law. MacDonald v. Navajo Nation, 6 Nav. R. 290 (Nav. Sup. Ct. 1990).

(4) Protection for judicial conduct

• Lower court must determine if officials were acting in their official capacity for the purpose of determining if “complete judicial immunity” applies. Chapo v. Navajo Nation, 8 Nav. R. 447 (Nav. Sup. Ct. 2004).

(5) Protection for legislative conduct

• Sovereign immunity precludes a lawsuit against Council Members who are performing legislative functions. Plummer v. Brown, 6 Nav. R. 88 (Nav. Sup. Ct. 1989).

c) Extension of immunity protection

• No one other than the Council may extend immunity protections. Blaze Const. v. Crownpoint Inst. of Tech., 7 Nav. R. 296 (Nav. Sup. Ct. 1997).

d) Garnishment proceedings

• Garnishment proceedings are barred under sovereign immunity. NTUA v. Foster, 4 Nav. R. 86 (1983).

• Garnishment and attachment proceedings shall be permitted against Navajo Nation so long as they do not interfere with the performance of public duties. NTUA v. Foster, 4 Nav. R. 86 (1983).

6. Waiver of sovereign immunity

a) Public policy behind waivers

• A decision to waive sovereign immunity is an exercise of sovereignty by the Navajo Nation for the benefit of its citizens and for the good of the Navajo government. Johnson v. Navajo Nation, 5 Nav. R. 192 (Nav. Sup. Ct. 1987).

b) Strictly construed

• Waivers of sovereign immunity are strictly construed. Biakeddy v. Biakeddy, 6 Nav. R. 391 (Nav. Sup. Ct. 1991).

• Any conditional limitations placed on a Tribe’s waiver of immunity must be strictly construed in favor of the Tribe. NHA v. Howard Dana & Assoc., 5 Nav. R. 157 (Nav. Sup. Ct. 1987).

c) Must be unequivocally expressed

• The waiver of sovereign immunity must always be unequivocally expressed. TBI Contractors, Inc. v. Navajo Nation, 6 Nav. R. 57 (Nav. Sup. Ct. 1988).

• A congressional waiver of an Indian Tribe's sovereign immunity must be unequivocally expressed and not implied. Johnson v. Navajo Nation, 5 Nav. R. 192 (Nav. Sup. Ct. 1987).

d) Power of Council

• The Navajo Nation may be sued if the Council specifically authorized the suit. Raymond v. NAPI, 7 Nav. R. 142 (Nav. Sup. Ct. 1995).

• The Court will not judicially abolish sovereign immunity. Action on the issue should be taken by the Council. Keeswood v. The Navajo Tribe, 2 Nav. R. 46 (Nav. Ct. App. 1979).

• The council has impliedly adopted sovereign immunity and this Court will not judicially abolish it. Peterson v. Ford Motor Credit Co., 2 Nav. R. 17 (Nav. Ct. App. 1979).

e) Power of Congress

• Congress has the power to consent to the waiver of sovereign immunity by an Indian Tribe and in specific instances may waive a tribe's sovereign immunity. Johnson v. Navajo Nation, 5 Nav. R. 192 (Nav. Sup. Ct. 1987).

f) Compulsory counterclaims are not waivers

• The filing of a compulsory counterclaim does not waive sovereign immunity. TBI Contractors, Inc. v. Navajo Nation, 6 Nav. R. 57 (Nav. Sup. Ct. 1988).

B. Exceptions to sovereign immunity

1. Insurance exception

a) Waiver for claims covered by insurance

• Subsection F of the Sovereign Immunity Act waives immunity for any claim which is within the express coverage and not excluded by commercial liability insurance carried by the Navajo Nation. Bennett v. Shirley, No. SC-CV-21-07, slip op. (Nav. Sup. Ct. November 29, 2007).

• Where the Nation’s insurance excludes employment claims, a disgruntled employee cannot overcome the Nation’s immunity. Navajo Nation v. Crockett, 7 Nav. R. 237 (Nav. Sup. Ct. 1996).

• The Sovereign Immunity Act allows suit when covered by Tribe’s insurance policy. Raymond v. NAPI, 7 Nav. R. 142 (Nav. Sup. Ct. 1995).

• NAPI’s insurance policy includes misrepresentation, and thus is excluded from sovereign immunity. Raymond v. NAPI, 7 Nav. R. 142 (Nav. Sup. Ct. 1995).

• There is an exception to sovereign immunity where the claim is covered by the Navajo Nation’s liability insurance. Chavez v. Upshaw, 6 Nav. R. 519 (W.R. Dist. Ct. 1989).

• A court has jurisdiction over the Navajo Nation if the suit falls within the insurance obtained by the Tribe. Manuelito v. Kellogg, 6 Nav. R. 508 (W.R. Dist. Ct. 1989).

• A court has jurisdiction over the Navajo Nation if the suit falls within the insurance obtained by the Tribe. Johnson v. Navajo Nation, 5 Nav. R. 192 (Nav. Sup. Ct. 1987).

• Plaintiff’s claim must be covered under an insurance policy before the Court can assert jurisdiction. Johnson v. Navajo Nation, 5 Nav. R. 192 (Nav. Sup. Ct. 1987).

• The Navajo Nation does relax sovereign immunity to the extent of insurance. Hubbard v. Chinle School Dist. Nos. 24/25, 3 Nav. R. 167 (Nav. Ct. App. 1982).

b) Evidence of insurance is not enough

• Mere evidence of insurance does not give the district court jurisdiction. The law requires that the plaintiffs claim be covered under the insurance policy before the court can assert jurisdiction over the Navajo Nation. Johnson v. Navajo Nation, 5 Nav. R. 192 (Nav. Sup. Ct. 1987).

c) Later insolvency of insurance company irrelevant

• Courts do not lose jurisdiction if the Tribe’s insurance company later becomes insolvent. Johnson v. Navajo Nation, 5 Nav. R. 192 (Nav. Sup. Ct. 1987).

• Jurisdiction of the court is not dependent upon the question of whether the insurance company is able to pay. Johnson v. Navajo Nation, 5 Nav. R. 192 (Nav. Sup. Ct. 1987).

d) Policy decisions exclusion

• The insurance exception does not apply to claims for injury or damage alleged to have been sustained by policy decisions or the exercise of discretion made by a public official, employee or agent in the exercise or judgment or discretion vested in the entity or individual. Bennett v. Shirley, No. SC-CV-21-07, slip op. (Nav. Sup. Ct. November 29, 2007).

• The policy decisions exclusion only applies to lawsuits brought under the insurance exception. It does not apply to lawsuits brought under some other exception to sovereign immunity. Bennett v. Shirley, No. SC-CV-21-07, slip op. (Nav. Sup. Ct. November 29, 2007).

e) Must be interpreted in favor of an injured plaintiff

• The insurance exception must be interpreted in favor of an injured plaintiff. Manuelito v. Kellogg, 6 Nav. R. 508 (W.R. Dist. Ct. 1989).

• The insurance exception to sovereign immunity has been enacted for the benefit of injured parties, and thus, it must be interpreted to the benefit of the injured plaintiff. Johnson v. Navajo Nation, 5 Nav. R. 192 (Nav. Sup. Ct. 1987).

2. Mandamus exception

• Any officer, employee or agent of the Navajo Nation may be sued in the courts of the Navajo Nation to compel him/her to perform his/her responsibility under the expressly applicable laws of the United States and of the Navajo Nation, which shall include the Bill of Rights of the Navajo Nation, as set forth in Chapter 1, Title 1, Navajo Nation Code. This exception is limited to declaratory or prospective injunctive relief. Bennett v. Shirley, No. SC-CV-21-07, slip op. (Nav. Sup. Ct. November 29, 2007).

• The President may not be sued to compel him to perform his responsibilities. Bennett v. Shirley, No. SC-CV-21-07, slip op. (Nav. Sup. Ct. November 29, 2007).

• 1 N.N.C. §554(G) waives the immunity of Navajo Nation officers or employees to compel them to perform their responsibilities under federal or Navajo Nation law. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004).

• This waiver is limited in relief to declaratory or prospective mandatory or injunctive relief. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004).

• A Navajo Nation official may not be compelled to give retrospective relief. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004).

• A District Court has jurisdiction to award declaratory, injunctive and mandamus relief where a defendant where a defendant does not perform his responsibilities under Navajo Nation law. Judy v. White, 8 Nav. R. 769 (Chin. Dist. Ct. 2002).

• A party has a due process right to obtain protection of their right to government benefits. A Tribal Official may be enjoined under the Sovereign Immunity Act from denying this due process right. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996).

• The provisions of the Sovereign Immunity Act allowing an injunction against an official are inapplicable to a case for money damages. Raymond v. NAPI, 7 Nav. R. 142 (Nav. Sup. Ct. 1995).

• The provisions of the Sovereign Immunity Act allowing an injunction against an official are inapplicable to a case for money damages. TBI Contractors, Inc. v. Navajo Nation, 6 Nav. R. 57 (Nav. Sup. Ct. 1988).

• Suit may be brought against the Navajo Nation to compel performance of a legal responsibility. NTUA v. Foster, 4 Nav. R. 86 (1983).

3. Civil rights exception

• A civil rights claim may be brought against the Nation under the insurance exception. Navajo Nation v. Crockett, 7 Nav. R. 237 (Nav. Sup. Ct. 1996).

• A party has a due process right to obtain protection of their right to government benefits. A Tribal Official may be enjoined under the Sovereign Immunity Act from denying this due process right. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996).

• The Sovereign Immunity Act recognizes that the people of the Nation have rights under the Bill of Rights which are limits on the powers of the sovereign. The Act provides specific remedies for violations of people’s rights under the Bill of Rights. Raymond v. NAPI, 7 Nav. R. 142 (Nav. Sup. Ct. 1995).

• Suits against the Navajo Nation under the Indian Civil Rights Act are barred by its sovereign immunity. Raymond v. NAPI, 7 Nav. R. 142 (Nav. Sup. Ct. 1995).

• Suits against the Navajo Nation under the Indian Civil Rights Act are barred by its sovereign immunity. TBI Co-ntractors, Inc. v. Navajo Nation, 6 Nav. R. 57 (Nav. Sup. Ct. 1988).

• The Navajo Bill of Rights does not waive sovereign immunity. TBI Contractors, Inc. v. Navajo Nation, 6 Nav. R. 57 (Nav. Sup. Ct. 1988).

• The Navajo Nation may be sued for wrongful deprivation or impairment of civil rights guaranteed under the Navajo Bill of Rights. Johnson v. Navajo Nation, 5 Nav. R. 192 (Nav. Sup. Ct. 1987).

• Suits against the Navajo Nation under the Indian Civil Rights Act are barred by its sovereign immunity. Johnson v. Navajo Nation, 5 Nav. R. 192 (Nav. Sup. Ct. 1987).

• The Indian Civil Rights Act and the Navajo Bill of Rights may also be enforced against Navajo Nation officials under the Navajo Sovereign Immunity Act. Johnson v. Navajo Nation, 5 Nav. R. 192 (Nav. Sup. Ct. 1987).

• Sovereign immunity does not protect the Navajo Nation from paying just compensation when it exercises the power of eminent domain. Dennison v. Tucson Gas & Electric Co., 1 Nav. R. 95 (Nav. Ct. App. 1974).

C. Procedure for suing the Navajo Nation

1. Procedures must be strictly followed

• The procedures for suing the Navajo Nation in the Sovereign Immunity Act must be strictly followed. Lee v. Johns, 3 Nav. R. 229 (Ship. Dist. Ct. 1982).

2. Notice of claim

• It would be sound practice for a plaintiff in a case against the Navajo Nation to expressly identify the point of law under which an officer, employee or agent is obligated to perform his official functions and the claimed violation thereto. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004).

• A party does not have to name the “Navajo Nation” in the pre-filing notice of claim so long as the actual defendants are named. Chapo v. Navajo Nation, 8 Nav. R. 447 (Nav. Sup. Ct. 2004).

• Complaint must be dismissed where confirmation of service of notice of potential action was not filed 30 days prior to filing of complaint. Sangster v. Navajo-Hopi Legal Services Program, 6 Nav. R. 528 (W.R. Dist. Ct. 1989).

3. Naming of parties

• The Navajo Nation can be named as a separate defendant under certain circumstances. Bennett v. Shirley, No. SC-CV-21-07, slip op. (Nav. Sup. Ct. November 29, 2007).

• Plaintiffs may file a suit to enjoin any officer, employee or agent of the Navajo Nation. This does not require the Navajo Nation to be included as a separate defendant. Bennett v. Shirley, No. SC-CV-21-07, slip op. (Nav. Sup. Ct. November 29, 2007).

• It is not necessary that the Navajo Nation be actually named as a party where case is filed against an officer of the Navajo Nation and the Sovereign Immunity Act has been followed. Manuelito v. Kellogg, 6 Nav. R. 508 (W.R. Dist. Ct. 1989).

• If the ultimate relief sought is relief against the sovereign, immunity applies regardless of how the complaint describes defendants. Plummer v. Brown, 6 Nav. R. 88 (Nav. Sup. Ct. 1989).

4. Changing venue to Window Rock

• The provision in the sovereign immunity act permitting the Navajo Nation to move the action to the Window Rock District Court is not jurisdictional. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004).

• Only the Navajo Nation Department of Justice may invoke the right to move the case to Window Rock District Court. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004).

• Where the Navajo Nation Department of Justice timely requests transfer, the Court is without discretion to deny it and the failure to do so may lead to a mandamus action. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004).