Declaratory Rulings on Questions of Navajo Law

These rules are adopted for the purpose of providing a speedy determination and declaration of the law of the Navajo Nation, particularly questions of Navajo statutory and common law, and particularly the common law of custom.

These rules shall apply to situations in which the courts of foreign jurisdictions, and administrative agencies of the United States. States and other jurisdictions are required to make a determination of Navajo law.

1. When accepted.  The Court of Appeals of the Navajo Nation is an Appellate court, but it is authorized to issue any writs of orders necessary and proper to the complete exercise of its jurisdiction, including the jurisdiction to make a final determination of points of Navajo law.  The institution of original proceedings to declare the law of the Navajo Nation for the purposes of proceedings before foreign judicial and administrative bodies are sometimes justified to make certain that determinations of Navajo law in such proceedings are correct.
2. When commenced and conducted.  All original proceedings for a declaratory determination of Navajo law shall be by means of the certification of questions of law to the Court of Appeals by the courts of a foreign jurisdiction or an administrative agency or body of a foreign jurisdiction.  Such proceedings may be had when there is a question of Navajo law to be determined for application to a pending case or, in the case of administrative agencies, when there is a question of law applicable to the operations of such agencies.
3. Applications—where and when filed.  An original application may be made to the Court of Appeals at any time. The moving application and all supporting documents shall be filed with the Clerk of Court of Appeals at the courthouse at Window Rock, Navajo Nation (Arizona) or may be submitted to the clerk at Post Office Box 520, Window Rock, Navajo Nation (Arizona)  86515.
4. Applications—what to contain.  The application for the Navajo Nation must be set forth the particular questions and issues of law to be resolved and those facts which are necessary to pose the questions and issues for determination.  The necessity and propriety of the issuance of a declaratory ruling will be determined from the application and any exhibits, documents, court minutes, judgments, orders, documents or other matters set forth or appended to the application. A memorandum of authorities or briefs may be filed with the application.
5. Procedure.  The Chief Justice of the Navajo Nation shall consider any application for a declaratory ruling immediately upon its filing and shall determine the propriety and necessity of issuing a declaratory ruling and whether the questions and issues of law raised should be determined by the full Court of Appeals.  On the basis of the application on file, the Chief Justice shall as promptly as possible dismiss the application, accept jurisdiction and schedule it for hearing or order further response to the application by mean of briefs, motions or otherwise.  Only in extraordinary cases will the court grant oral argument to determine the necessity and propriety of accepting jurisdiction.
6. Oral argument.  When ordered by the court, an adversary hearing on the application may be held at the time fixed by the order.  Oral argument shall be conducted in the same manner as in the argument of appeals.
7. Briefs.  In cases in which oral argument is ordered, the court may require the filing and service of briefs containing a statement of facts and points of law applicable, with the authorities relied upon.

Where an application raises questions of Navajo customary law, the Chief Justice shall appoint associate justices to the three-judge panel who have particular expertise or knowledge of the customary law of the Navajo People. Retired judges of the Courts of the Navajo Nation may be appointed for such matters.

Where a certified question of law is one of general application within the Navajo Nation or of major importance the Chief Justice may invite the Attorney General of the Navajo Nation to file and serve a brief on the questions certified.

Upon the determination of the Courts of Appeals on the question or issue of law certified, the court shall issue its declaratory ruling stating the law.

The court may take judicial notice of the custom law of the Navajo People where such law is a matter of common knowledge or such law, as a matter of domestic law, is clear and determinable through reference to scholarly works. Where an uncertainty or doubt arises as to the customs and usages of the Navajo People, or the application of a custom or usage is uncertain, the court may, on its own motion, request the advice of counselors familiar with customs or usages. A “counselor familiar with customs or usages of the Navajo People” for the purposes of these rules and 7 N.T.C. ^ 204(b) is a medicine man or woman, an elder or any other person found by the court to have such familiarity or expertise. Such consultations need not be conducted in an adversary manner and may be made informally, and such consultations are not considered evidentiary in nature.

Questions of the custom law of the Navajo People may be determined by the court from the following sources, and in the order stated:

1. Prior decisions of the Courts of the Navajo Nation relating to the questions posed;
2. Judicial notice of matters of common knowledge or matters easily determined by reference to reliable published sources;
3. The advice of counselors or experts qualified to render opinions on matters of customary law;
4. Scholarly works on the custom law of the Navajo People determined by the court to be reliable.

The court may consider books, articles, and scholarly papers on the customary law of the Navajo, whether submitted tot he court or referred to by the court, and such materials shall be deemed authentic and admissible as evidence of the law if they are published by a commercial publisher or by a source determined by the court to be reliable.

The declaratory ruling by the courts shall be by means of a written opinion, which must set forth the facts, the legal questions and issues posed and a discussion of the law with supporting authorities. Where a ruling is based upon the advice of counselors familiar with the custom and usage of the Navajo People, the court shall identify such persons, the basis of his or her knowledge of customary law and the advice given to the court.

The court shall consider whether the discussion of any point of law requires the disclosure of traditional matters which are considered sacred and which should not be stated in writing. In such case the court may state a conclusion of law based upon the sacred tradition or ceremony, but the details of such tradition or ceremony shall not be stated.

Upon the determination of the question or issue which has been certified to the court by application the court shall transmit a copy of its opinion to the foreign jurisdiction requesting a declaratory ruling.

The court shall permit no ex parte communications with respect to a question or issue of law pending before it. The court is authorized to obtain the advice of counselors for the purpose of making a determination of custom law, but no individual under the control of a party to any proceeding affected by a declaratory ruling may be consulted without the safeguards of an adversary proceeding.