Statutory Interpretation Outline

• For cases on ex post facto laws, the primacy of the Bill of Rights over other statutes and the principle of judicial review of legislation to ensure that it does not violate civil rights, see Civil Rights Outline.

• For general cases on the Legislative Branch of Navajo government, see Government Outline. • For cases holding that the Navajo Council does not require the approval of the U.S. government to

enact legislation, see Federal Indian Law Outline.

Contents

I.  Resolving conflicts involving statutes .................................................................................... 1 

A.  Conflicts with older statutes ............................................................................................. 1 

B.  Conflicts with court rules ................................................................................................. 1 

C.  Conflicts with personnel policies or regulations .............................................................. 1 

D.  The primacy of Title II as an organic law ........................................................................ 1 

II.  Diné Bi Beenahaz’áanii in the interpretation of statutes ........................................................ 2 

A.  Meaning of “beehaz’áanii” .............................................................................................. 2 

B.  Diné Bi Beenahaz’áanii as law of the Navajo Nation ...................................................... 2 

C.  Traditional law reserved in Treaty of 1868 ...................................................................... 3 

D.  Diné Bi Beenahaz’áanii as Navajo constitution ............................................................... 4 

E.  Using Diné Bi Beenahaz’áanii to interpret statutes ......................................................... 4 

F.  Resolving conflicts between Diné Bi Beehanaz’áanii and statutes or rules ........................ 5 

G.  Using Diné Bi Beenahaz’áanii when statutes are silent ................................................... 5 

H.  Reviewing due process under Diné Bi Beenahaz’áanii ................................................... 5 

I.  Diné Bi Beehahaz’áanii may be replaced with statutory law .............................................. 5 

J.  Policy behind the Diné Bi Beenahaz’áanii statute ............................................................... 5 

III.  Vagueness and ambiguity .................................................................................................... 6 

A.  Grounds for invalidating statute ....................................................................................... 6 

B.  Test for ambiguity ............................................................................................................ 6 

C.  Ambiguous statutes may not be used to create two punishments for the same conduct .. 6 

D.  Statutes must be clear so that people may understand and follow them .......................... 6 

E.  Use of Diné Bi Beenahaz’áanii to resolve ambiguity ...................................................... 7 

F.  Using legislative history ...................................................................................................... 7 

IV.  Retroactivity ......................................................................................................................... 8 

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A.  Burdens on property rights ............................................................................................... 8 

B.  Language of statute must require retroactivity ................................................................. 8 

C.  Statutes may not revoke vested rights .............................................................................. 8 

V.  General interpretative tools ..................................................................................................... 9 

A.  Presumptions utilized in reviewing statutes ..................................................................... 9 

1.  Presumption of validity of statute ................................................................................. 9 

2.  Presumption that legislative motives are proper........................................................... 9 

3.  Legislature is presumed to know the law ..................................................................... 9 

B.  Manner of reading statutes ............................................................................................. 10 

1.  Enforcing the plain meaning of the statute ................................................................. 10 

2.  Must read statute comprehensively; avoiding invalidation of any provision ............. 11 

3.  Permissible inferences when interpreting statutes ...................................................... 11 

4.  Must read statutes consistent with their purpose ........................................................ 11 

5.  Interpreting federal statutes ........................................................................................ 11 

6.  Statutes using the word “shall” impose mandatory obligations ................................. 12 

7.  Where plain reading leads to an absurd result, court must look to intent of Council. 12 

8.  Read laws covering the same subject together ........................................................... 13 

9.  Obligations of public officials are considered mandatory if they are for the public good 13 

C.  Motives of legislature are relevant only in cases of fraud or bad faith .......................... 13 

D.  Resolving civil rights challenges on narrower grounds ................................................. 13 

E.  Necessity of ascertainable standards for statutes impacting liberty ............................... 13 

F.  Navajo understanding of English words may differ from non-Navajo understanding ...... 14 

G.  Legislation must not permit abuses of discretion ........................................................... 14 

H.  Statutes must be rationally related to legitimate governmental purposes ...................... 14 

I.  Impact of invalidating statutes ........................................................................................... 14 

VI.  The process of enacting statutes ........................................................................................ 15 

A.  The determination of which resolutions constitute legislative acts ................................ 15 

B.  Enacting legislation ........................................................................................................ 15 

1.  Underlying laws must be valid ................................................................................... 15 

2.  Enacting procedures must be strictly followed ........................................................... 15 

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3.  Procedures for enacting statutes ................................................................................. 15 

C.  Power of legislative committees .................................................................................... 16 

D.  Council must follow its own laws .................................................................................. 16 

VII.  Election statutes ................................................................................................................. 16 

VIII.  Criminal statutes ............................................................................................................. 17 

1.  Doubts resolved in favor of criminal defendants ........................................................ 17 

2.  Criminal statutes must be clear and certain ................................................................ 17 

3.  Criminal statutes must not be a trap ........................................................................... 17 

4.  Heightened scrutiny for statutes creating multiple offenses for single act ................. 17 

I. Resolving conflicts involving statutes

Note: for cases resolving conflicts between statutes and Diné Bi Beenahaz’áanii, see next section.

A. Conflicts with older statutes

• Where there is a new statute that possibly conflicts with an older statute, Court shall try to harmonize statutes. If statutes cannot be harmonized, older statute must yield. Matter of Estate of Kindle, No. SC-CV-40-05, slip op. (Nav. Sup. Ct. May 18, 2006).

• The Court will apply a “last in time” rule to decide whether a later statute overrules a prior statute. Allen v. Fort Defiance Housing Corp., 8 Nav. R. 759 (Nav. Sup. Ct. 2005).

• The Court will seek to interpret conflicting statutes in such a manner that it may retain both statutes, if possible. Allen v. Fort Defiance Housing Corp., 8 Nav. R. 759 (Nav. Sup. Ct. 2005).

• When two statutes conflict, the Court will use Dine' Bi Beenahaz’áanii to bring us back in harmony. Allen v. Fort Defiance Housing Corp., 8 Nav. R. 759 (Nav. Sup. Ct. 2005).

• If a new statute plainly revokes an older statute, that language will be enforced. When there is no explicit repeal, the Court will assess the policies behind the statutes. If the statutes can co-exist, the Court will not recognize a repeal. Allen v. Fort Defiance Housing Corp., 8 Nav. R. 759 (Nav. Sup. Ct. 2005).

• Where the policies cannot be harmonized, the prior statute must yield. Allen v. Fort Defiance Housing Corp., 8 Nav. R. 759 (Nav. Sup. Ct. 2005).

• Where subsequent statute is passed in violation of previous statute, and in absence of repealer clause, subsequent statute is invalid. Halona v. MacDonald, 1 Nav. R. 189 (Nav. Ct. App. 1978).

B. Conflicts with court rules

• Supreme Court will defer to laws duly enacted by the Navajo Nation Council. Matter of Termination of Yazzie, Nos. SC-CV-37-05 and SC-CV-42-05, slip op. (Nav. Sup. Ct. June 14, 2007).

• In a direct conflict between a statute passed by the Navajo Nation Council and a rule approved by Supreme Court, the statute must prevail. Matter of Termination of Yazzie, Nos. SC-CV-37-05 and SC-CV-42-05, slip op. (Nav. Sup. Ct. June 14, 2007).

• In a direct conflict between a statute and a court rule, the statute prevails. Fort Defiance Housing Corp. v. Allen, 8 Nav. R. 492 (Nav. Sup. Ct. 2004).

C. Conflicts with personnel policies or regulations

• When a personnel policy or regulation conflicts with a clear and unambiguous provision within the Navajo Nation Code, Supreme Court will rely on the Code provision. Matter of Termination of Yazzie, Nos. SC-CV-37-05 and SC-CV-42-05, slip op. (Nav. Sup. Ct. June 14, 2007).

D. The primacy of Title II as an organic law

Note: see also primacy of the Bill of Rights in the Civil Rights Outline.

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• Title II of the Navajo Nation Code is an organic law, taking precedence over other statutes. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004).

• Title II requires resolutions proposing new laws shall clearly indicate new language by underscoring the new language and deletion by overstrike and shall refer to appropriate Navajo Nation Code titles and sections. 2 N.N.C. § 165. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004).

• Title II Amendments, including limitations on pay raises, are “fundamental and organic” laws of the Navajo Nation which prevail over conflicting laws. Judy v. White, 8 Nav. R. 769 (Chin. Dist. Ct. 2002).

• The Title II Amendments, along with the Navajo Nation Bill of Rights and the Judicial Reform Act of 1985, are fundamental, organic laws which are superior to any conflicting law. Tuba City Jud. Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

• Because Title II of the Navajo Nation Code is an “organic law” which takes precedence over other statutes, along with the Navajo Nation Bill of Rights, procedural requirements for the enactment of Navajo Nation legislation must be strictly observed. In the Matter of Certified Question, 8 Nav. R. 132 (Nav. Sup. Ct. 2001).

• The Title II Amendments, along with the Navajo Nation Bill of Rights and the Judicial Reform Act of 1985, are fundamental, organic laws which are superior to any conflicting law. Bennett v. Navajo Bd. Of Elec. Sup., 6 Nav. R. 319 (Nav. Sup. Ct. 1990).

II. Diné Bi Beenahaz’áanii in the interpretation of statutes

A. Meaning of “beehaz’áanii”

• Beehaz'aanii refers to a higher law which the Supreme Court has described as follows: “It means something which is ‘way at the top’; something written in stone so to speak; something which is absolutely there; and, something like the Anglo concept of natural law. In other words Navajos believe in a higher law, and as it is expressed in Navajo, there is a concept similar to the idea of unwritten constitutional law.” Rough Rock Comm. Sch. v. Navajo Nation, 7 Nav. R. 168 (Nav. Sup. Ct. 1995).

• Navajo customs and traditions that are fundamental and basic to Navajo life and society are higher law. Rough Rock Comm. Sch. v. Navajo Nation, 7 Nav. R. 168 (Nav. Sup. Ct. 1995).

• Navajo beehaz'aanii includes the concept of political liberty, a due process right, and applied the Navajo common law, rather than the American concept, of political liberty. Rough Rock Comm. Sch. v. Navajo Nation, 7 Nav. R. 168 (Nav. Sup. Ct. 1995).

B. Diné Bi Beenahaz’áanii as law of the Navajo Nation

• The Supreme Court applies Dine’ Bi Beenahaz’áanii alongside statutory law as the law of the Navajo Nation, as mandated by the Navajo Nation Council. Riggs v. Estate of Attakai, No. SC-CV-39-04, slip op. (Nav. Sup. Ct. June 13, 2007).

• The Council has directed the Supreme Court to interpret laws as follows: “The leader(s) of the Judicial Branch (Aląąjį’ Hashkééjí Naat’ááh) shall uphold the values and principles of Dine’ Bi Beenahaz’áanii in the practice of peace making, obedience, discipline, punishment, interpreting laws and rendering decisions and judgments.” Riggs v. Estate of Attakai, No. SC-CV-39-04, slip op. (Nav. Sup. Ct. June 13, 2007).

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• Consistent with this mandate, the Supreme Court’s approach is to reconcile statutory and Fundamental Law to define the law of the Nation. Riggs v. Estate of Attakai, No. SC-CV-39-04, slip op. (Nav. Sup. Ct. June 13, 2007).

• Navajo common law is the law of preference in the Navajo Nation. Navajo Nation v. Crockett, 7 Nav. R. 237 (Nav. Sup. Ct. 1996).

• Since time immemorial the Navajo people have applied their customs and traditions in dispute resolution. Even with the Navajo Court of Indian Offenses, the Navajo judges of that court, under often adverse circumstances, continued to apply Navajo customs and traditions in cases brought before them. Navajo courts of today are no exception; they apply customs and traditions as the law of preference. Ben v. Burbank, 7 Nav. R. 222 (Nav. Sup. Ct. 1996).

• Navajo common law is the first law of Navajo courts and the Court will abide by it whenever possible. Ben v. Burbank, 7 Nav. R. 222 (Nav. Sup. Ct. 1996).

• The soul of this Court is to apply Navajo Tribal law, especially where our custom and traditions are appropriate. Ben v. Burbank, 7 Nav. R. 222 (Nav. Sup. Ct. 1996).

• Navajo common law is the law of preference in the Navajo Nation. Downey v. Bigman, 7 Nav. R. 176 (Nav. Sup. Ct. 1995).

• Navajo common law is the law of preference in the Navajo Nation courts. Rough Rock Comm. Sch. v. Navajo Nation, 7 Nav. R. 168 (Nav. Sup. Ct. 1995).

• Since time immemorial the Navajo people have applied their customs and traditions in dispute resolution. Even with the Navajo Court of Indian Offenses, the Navajo judges of that court, under often adverse circumstances, continued to apply Navajo customs and traditions in cases brought before them. Navajo courts of today are no exception; they apply customs and traditions as the law of preference. Navajo Nation v. Platero, 6 Nav. R. 422 (Nav. Sup. Ct. 1991).

• Customs and traditions of the Navajo people have the force of law. They provide a unique body of law known as Navajo Common law. Navajo Nation v. Platero, 6 Nav. R. 422 (Nav. Sup. Ct. 1991).

• 7 N.N.C. § 204 expresses the Navajo Tribal Council's intent that Navajo law, consisting of Navajo statutes, custom law, and decisional law be applied wherever possible. Alonzo v. Martine, 6 Nav. R. 395 (Nav. Sup. Ct. 1991).

• The soul of Navajo courts is to apply Navajo Tribal law, especially where Navajo custom and tradition are appropriate. Alonzo v. Martine, 6 Nav. R. 395 (Nav. Sup. Ct. 1991).

• Navajo traditions and customs have the force of law. Validation of Marriage of Francisco, 6 Nav. R. 134 (Nav. Sup. Ct. 1989).

• The soul of the court is to apply Navajo Tribal law, especially where Navajo custom and traditions are appropriate. Sells v. Sells, 5 Nav. R. 104 (Nav. Sup. Ct. 1986).

• Navajo Common Law is a body of law which is fully binding on the Dist. Ct. and on the parties. Tome v. Navajo Nation, 4 Nav. R. 159 (W.R. Dist. Ct. 1983).

• Navajo custom and tradition is as much the law of the Navajo Nation as a tribal council resolution or a statute in the Navajo Tribal Code. Apache v. Republic Nat’l Life Ins. Co., 3 Nav. R. 250 (W.R. Dist. Ct. 1982).

• Navajo customs cannot be applied in a vacuum, and they must be applied with logic in accordance with present circumstances. Apache v. Republic Nat’l Life Ins. Co., 3 Nav. R. 250 (W.R. Dist. Ct. 1982).

C. Traditional law reserved in Treaty of 1868

• When the Navajo Nation concluded the treaty of 1868, they reserved the right to use their traditions as law. Bennett v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 319 (Nav. Sup. Ct. 1990).

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• When the Navajo Nation concluded the treaty of 1868, they reserved the right to use their traditions as law. A.P.S. v. O.N.L.R., 6 Nav. R. 246 (Nav. Sup. Ct. 1990).

D. Diné Bi Beenahaz’áanii as Navajo constitution

• We must also remember that the Navajo common law is also our constitution, and claims under it are subject to considerations of the community good and Navajo perceptions of moral right. Ben v. Burbank, 7 Nav. R. 222 (Nav. Sup. Ct. 1996).

• We must also remember that the Navajo common law is also our constitution, and claims under it are subject to considerations of the community good and Navajo perceptions of moral right. Navajo Nation v. Platero, 6 Nav. R. 422 (Nav. Sup. Ct. 1991).

E. Using Diné Bi Beenahaz’áanii to interpret statutes

• The Court has applied a rule of interpretation that incorporates Dine’ Bi Beenahaz 'aanii to discern the meaning of provisions of the Navajo Nation Code. Matter of Appeal of Vern R. Lee, No. SC-CV-32-06, slip op. (Nav. Sup. Ct. August 11, 2006).

• Though the Court considers federal interpretations, the Court ultimately must interpret the Bill of Rights consistent with Dine' Bi Beenahaz 'aanii. Navajo Nation v. Kelly, No. SC-CR-04-05, slip op. (Nav. Sup. Ct. July 24, 2006).

• Navajo Nation civil rights issues are interpreted in light of Dine' Bi Beenahaz’áanii. They are related factors, and the Court must consider them together with the relative circumstances engaging in a difficult and sensitive balancing process. Navajo Nation v. Badonie, No. SC-CR-06-05, slip op. (Nav. Sup. Ct. March 7, 2006).

• The general rule of statutory construction changed when the Council enacted Diyin Nohookáá Dine’é Bi Beehaz’áanii (Navajo Common Law). Navajo Common Law mandates that the Court interpret statutes consistent with Navajo Common Law. Tso v. Navajo Housing Auth., 8 Nav. R. 548 (Nav. Sup. Ct. 2004).

• Laws duly passed by the Council are to be interpreted in light of Navajo experience and Navajo common law. Fort Defiance Housing Corp. v. Allen, 8 Nav. R. 492 (Nav. Sup. Ct. 2004).

• Statute must be interpreted consistent with Diyin Nohookáá Dine’é Bi Beehaz’áanii. Thompson v. Greyeyes, 8 Nav. R. 476 (Nav. Sup. Ct. 2004).

• The written laws of the Navajo Nation must be interpreted in harmony with Diné common law. Thompson v. Greyeyes, 8 Nav. R. 476 (Nav. Sup. Ct. 2004).

• The written laws of the Navajo Nation must be interpreted in harmony with Diné common law. Navajo Housing Auth. v. Bluffview Resident Mgt. Corp., 8 Nav. R. 402 (Nav. Sup. Ct. 2003).

• Rules of Civil Procedure must be read to be consistent with fundamental rights of due process under the Navajo Common Law principle of k’e. Navajo Housing Auth. v. Bluffview Resident Mgt. Corp., 8 Nav. R. 402 (Nav. Sup. Ct. 2003).

• When a statute or court rule is derived from general American law, the Supreme Court will look to general interpretations of the applicable law and apply them, if they are in accord with the Navajo Nations statutory intent and Navajo common law. Jensen v. Giant Industries, 8 Nav. R. 203 (Nav. Sup. Ct. 2002).

• Navajo laws are to be interpreted in light of Navajo experience and Navajo Common Law. Matter of Harvey and Begay, 6 Nav. R. 413 (Nav. Sup. Ct. 1991).

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F. Resolving conflicts between Diné Bi Beehanaz’áanii and statutes or rules

• Evidence rules must be read to be consistent with nályééh, not to be in conflict with it. This is an extension of the principle that procedural rules must be read in harmony with Diné bi beenahaz’áanii. Joe v. Black, No. SC-CV-62-06, slip op. (Nav. Sup. Ct. November 29, 2007).

• The Council has clearly articulated its policy in the Fundamental Law statute that the Nation's government adhere to and apply the fundamental principles of the Dine’ life way. Accordingly, a provision in another part of the Code, passed before the Fundamental Law statute, and in irreconcilable conflict with one of those principles, must yield. Matter of Appeal of Vern R. Lee, No. SC-CV-32-06, slip op. (Nav. Sup. Ct. August 11, 2006).

• Although the Navajo Probate Code provides that state law should apply unless custom is “proved,” this provision must yield to Diné Bi Beenahaz’áanii in light of the subsequent passage of the statute affirming the Fundamental Laws of the Diné. Matter of Estate of Kindle, No. SC-CV-40-05, slip op. (Nav. Sup. Ct. May 18, 2006).

• 8 N.N.C. § 2(b) states, “In the determination of heirs the court shall apply the custom of the Tribe as to inheritance if such custom is proved. Otherwise, the Court shall apply state law in deciding what relatives of the decedent are entitled to be his heirs.” Benally v. Denetclaw, 5 Nav. R. 174 (Nav. Sup. Ct. 1987). (Note: this statement regarding 8 N.N.C. § 2(b) is presented in strikeout format because it was rendered void by the holding in Matter of Estate of Kindle, No. SC-CV-40-05, slip op. (Nav. Sup. Ct. May 18, 2006)).

G. Using Diné Bi Beenahaz’áanii when statutes are silent

• In the absence of statutory law, the Supreme Court first and foremost considers Dine' Bi Beenahaz’áanii (Navajo Fundamental Law). Goldtooth v. Naa Tsis’ Community School, 8 Nav. R. 682 (Nav. Sup. Ct. 2005).

• The Court applies Diné Bi Beenahaz’áanii when the plain language of a statute does not cover a particular situation or is ambiguous. Tso v. Navajo Housing Auth., 8 Nav. R. 548 (Nav. Sup. Ct. 2004).

• Absent applicable federal law, it is clear to the Court that its analysis must focus on applicable Navajo custom. Williams v. Lee, 8 Nav. R. 783 (W.R. Dist. Ct. 2003).

H. Reviewing due process under Diné Bi Beenahaz’áanii

• Under Diyin Nohookáá Dine’é Bi Beehaz’áanii (Navajo Common Law), the Court may revisit previous due process decisions that were based on federal law, and issue a new opinion based on Navajo Common Law. Eriacho v. Ramah Dist. Ct., 8 Nav. R. 617 (Nav. Sup. Ct. 2005).

I. Diné Bi Beehahaz’áanii may be replaced with statutory law

• Navajo tradition may be replaced with statutes influenced by Anglo-American law. Matter of Estate of Bigthumb, 6 Nav. R. 453 (W.R. Dist. Ct. 1989).

J. Policy behind the Diné Bi Beenahaz’áanii statute

• In November 2002, the Navajo Council passed the Fundamental Laws of Diné to start aligning the Navajo government and people with Navajo traditional laws and values since knowledge and practice of these laws are fading and the tribe is experiencing many forms of negative behavior

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and occurrences. The Navajo Nation Council found that the Diné Life Way must be protected and assured by incorporating these fundamental laws into the Navajo Nation Code in a manner that will openly acknowledge that and recognize their importance and would generate interest to learn among all Diné. The Navajo Nation Council further found that all elements of the government must learn, practice and educate the Diné on the values and principles of these laws; when the judges adjudicate a dispute using these fundamental laws, they should be thoroughly explained so that we can all learn. Benally v. Benally, 8 Nav. R. 796 (Kay. Fam. Ct. 2003).

• The tribal government was designed mostly by federal officials dictating to tribal members. The Fundamental Laws of the Diné reminds us that Navajos need to start developing their own government according to their laws, traditions and customs. This law is a mark of Navajo autonomy. Benally v. Benally, 8 Nav. R. 796 (Kay. Fam. Ct. 2003).

III. Vagueness and ambiguity

A. Grounds for invalidating statute

• Statutes can be invalidated for vagueness. Matter of Appeal of Vern R. Lee, No. SC-CV-32-06 (Nav. Sup. Ct. August 11, 2006).

B. Test for ambiguity

• The Supreme Court has adopted the following three-prong test to determine whether a statute is void for vagueness: 1) the statute must be one which the ordinary person, exercising ordinary common sense, can understand; 2) candidates and election officials should not guess the meaning of the statute; and 3) the statute must not cause people to differ as to its application. Rough Rock Comm. Sch. v. Navajo Nation, 7 Nav. R. 168 (Nav. Sup. Ct. 1995).

• The “ascertainable standard” principle drives the three-prong test. A “standard” is a requirement. In an election code, it is a precondition to run for public office. To ascertain is “[t]o make certain and definite.” Rough Rock Comm. Sch. v. Navajo Nation, 7 Nav. R. 168 (Nav. Sup. Ct. 1995).

• If the legislature does not make a standard or statutory requirement “certain and definite,” confusion prohibited by the three-prong test results. Rough Rock Comm. Sch. v. Navajo Nation, 7 Nav. R. 168 (Nav. Sup. Ct. 1995).

C. Ambiguous statutes may not be used to create two punishments for the same conduct

• Ambiguous statutes do not show the Council’s clear intent that such laws punish separate conduct. Navajo Nation v. Kelly, No. SC-CR-04-05, slip op. (Nav. Sup. Ct. July 24, 2006).

D. Statutes must be clear so that people may understand and follow them

• The Supreme Court has found the principle of 77shján7 ádoolni7[, also expressed as doo naaki nilįįgóó, t'áá ííshjanígo, or t'áá bééhozínígo, requires that all statutes and rules must be clear so that people may understand them and can follow them, otherwise they are void for vagueness. Navajo Nation v. Castillo, 8 Nav. R. 866 (Crwn. Dist. Ct. 2005).

• The Supreme Court has previously expressed a principle of “ashjoni adoolnil” to require the election process to be clear, obvious, certain or definite. The principle might also be expressed as doo naaki nil99góó, t'áá ííshjánígó, or t’áá bééhozínígo. At the heart of each phrase is the principle

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that Navajo statutes and rules must be clear so that the people may understand them and can follow them. Yazzie v. Thompson, 8 Nav. R. 693 (Nav. Sup. Ct. 2005).

• This rule, adopted from the United States Supreme Court, 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).

• In the process of "talking things out," or meeting the Navajo common law procedural requirement that "everything must be talked over," there is a requirement of ashjoni adoolni[ (making something clear or obvious). Navajo decision-making is practical and pragmatic, and the result of "talking things out" is a clear plan. Rough Rock Comm. Sch. v. Navajo Nation, 7 Nav. R. 168 (Nav. Sup. Ct. 1995).

E. Use of Diné Bi Beenahaz’áanii to resolve ambiguity

• If the language of a statute is ambiguous, the Court considers Dine’ Bi Beenahaz’áanii in its analysis, and applies a meaning consistent with Fundamental Law. Matter of Appeal of Vern R. Lee, No. SC-CV-32-06, slip op. (Nav. Sup. Ct. August 11, 2006).

• Ambiguous language in a statute is interpreted consistent with Navajo common law. Begay v. Chief, 8 Nav. R. 654 (Nav. Sup. Ct. 2005).

• A previous interpretation by the Court of a statute is not binding if the statute is unclear and Navajo Common Law was not applied. Begay v. Chief, 8 Nav. R. 654 (Nav. Sup. Ct. 2005).

• Navajo Common Law requires that ambiguous statutory provisions be interpreted consistent with Navajo Common Law. Sells v. Rough Rock Community School, 8 Nav. R. 643 (Nav. Sup. Ct. 2005).

• Ambiguous statutory provisions are to be interpreted in light of Navajo Common Law. Allstate Indemnity Co. v. Blackgoat, 8 Nav. R. 627 (Nav. Sup. Ct. 2005).

• In interpreting ambiguous statutes, courts must first make sure that such interpretation is consistent with the Fundamental Laws of the Diné. Navajo Nation v. Rodriguez, 8 Nav. R. 604 (Nav. Sup. Ct. 2004).

• That the Navajo Nation Council explicitly adopts language from outside sources, or that a statute contains similar language, does not, without more, mean the Council intended for the Navajo courts to ignore fundamental Diné principles in giving meaning to such provisions. Navajo Nation v. Rodriguez, 8 Nav. R. 604 (Nav. Sup. Ct. 2004).

• When a statute is unclear, the Supreme Court applies the tools of statutory interpretation given by the Council, which requires that the Court give meaning to the Council’s ambiguous language consistent with the fundamental principles of the Navajo people. Duncan v. Shiprock Dist. Ct., 8 Nav. R. 581 (Nav. Sup. Ct. 2004).

• The Court applies Diné Bi Beenahaz’áanii when the plain language of a statute does not cover a particular situation or is ambiguous. Tso v. Navajo Housing Auth., 8 Nav. R. 548 (Nav. Sup. Ct. 2004).

• When a statute is unclear, the Supreme Court applies the tools of statutory interpretation given by the Council, which requires that the Court give meaning to the Council’s ambiguous language consistent with the fundamental principles of the Navajo people. Tso v. Navajo Housing Auth., 8 Nav. R. 548 (Nav. Sup. Ct. 2004).

F. Using legislative history

• The opinion of an attorney that drafted a statute is not “legislative history”. The opinions are not a part of the official record unless they are found in that record. The attorney can only give a

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personal opinion on the meaning of the statute. Judy v. White, 8 Nav. R. 769 (Chin. Dist. Ct. 2002).

• The Task Force report to the Council on the Navajo Preference in Employment Act is relevant to the interpretation of the NPEA. The Report is to be used in conjunction with other rules of statutory construction, including the stated rule of liberal construction in the NPEA and the mandate to interpret ambiguous language consistent with Navajo Common Law. Sells v. Rough Rock Community School, 8 Nav. R. 643 (Nav. Sup. Ct. 2005).

• The Court will resort to legislative history only when a statute is vague. In the Matter of Certified Question, 8 Nav. R. 132 (Nav. Sup. Ct. 2001).

• If the statutory language is ambiguous, the Court then examines the statute’s legislative history and overall objective. Dilcon v. Jensen, 8 Nav. R. 28 (Nav. Sup. Ct. 2000).

• The Court will resort to legislative history only when a statute is vague. PC&M Const. Co. v. Navajo Nation, 7 Nav. R. 58 (Nav. Sup. Ct. 1993).

• Ambiguous statutes may require examining extrinsic material such as the legislative record to ascertain the Tribal Council’s intent. N.N. Div. of Resources v. Spencer, 5 Nav. R. 109 (Nav. Sup. Ct. 1986).

IV. Retroactivity

A. Burdens on property rights

• Where there is a change in the law that burdens an important property right, the Court would be applying the new statute retroactively if it applied it to a case pending at the time of the adoption of the new statute. Phillips v. Navajo Housing Auth., 8 Nav. R. 751 (Nav. Sup. Ct. 2005).

• Adding an entity to the list of entities receiving protection as a part of the “sovereign” for sovereign immunity purposes burdens important property rights and would be retroactive legislation. Phillips v. Navajo Housing Auth., 8 Nav. R. 751 (Nav. Sup. Ct. 2005).

B. Language of statute must require retroactivity

• A Council resolution will not have retroactive effect unless its language requires that result. Tso v. Navajo Housing Auth., No. SC-CV-20-06, slip op. (Nav. Sup. Ct. December 6, 2007).

• A Council resolution will not have retroactive effect unless its language requires that result. Phillips v. Navajo Housing Auth., 8 Nav. R. 751 (Nav. Sup. Ct. 2005).

C. Statutes may not revoke vested rights

• Statutory amendment cannot revoke previously obtained property right. Tso v. Navajo Housing Auth., No. SC-CV-20-06, slip op. (Nav. Sup. Ct. December 6, 2007).

• The Navajo Nation Council has the authority to change the law in situations not involving vested civil rights, but it cannot retroactively deprive a litigant of the property right to sue for injuries. In the Matter of Certified Question, 8 Nav. R. 132 (Nav. Sup. Ct. 2001).

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V. General interpretative tools

A. Presumptions utilized in reviewing statutes

1. Presumption of validity of statute

• The Court presumes that the Council would not intend to violate the Navajo Nation Bill of Rights by enacting an ex post facto law, adopting a bill of attainder or denying an individual due process or equal protection of the law. In the Matter of Certified Question, 8 Nav. R. 132 (Nav. Sup. Ct. 2001).

• The Court presumes the Council would not intend to retroactively overrule a court decision or prospectively dictate the conclusion of any case pending before the Navajo Nation courts. In the Matter of Certified Question, 8 Nav. R. 132 (Nav. Sup. Ct. 2001).

• The Court presumes that legislative acts are proper and legal. Johnson v. Yellowman, 7 Nav. R. 545 (Ship. Dist. Ct. 1997).

• When a court is faced with reviewing any legislative action, that review must be conducted under certain principles. The main principle of judicial review is the presumption that the legislative act is proper and legal. Thompson v. Navajo Nation, 6 Nav. R. 181 (Nav. Sup. Ct. 1990).

• Resolutions of the Navajo Tribal Council are presumed to be valid and the party seeking to challenge the validity of any Council resolution has the burden of rebutting that presumption with clear evidence to the contrary. Thompson v. Navajo Nation, 6 Nav. R. 181 (Nav. Sup. Ct. 1990).

• Legislative acts are presumed valid. This presumption attaches from the moment legislation is passed and remains until rebutted. Navajo Nation v. MacDonald, 6 Nav. R. 463 (W.R. Dist. Ct. 1989).

• When a court is faced with reviewing any legislative action, that review must be conducted under certain principles. The main principle of judicial review is the presumption that the legislative act is proper and legal. Navajo Nation v. MacDonald, 6 Nav. R. 463 (W.R. Dist. Ct. 1989).

• When a court is faced with reviewing any legislative action, that review must be conducted under certain principles. The main principle of judicial review is the presumption that the legislative act is proper and legal. Benally v. Gorman, 5 Nav. R. 272 (W.R. Dist. Ct. 1987).

• Legislative acts are presumed to be valid. Damon v. MacDonald, 4 Nav. R. 138 (W.R. Dist. Ct. 1983).

2. Presumption that legislative motives are proper

• The Court presumes that legislators act from proper motives. Johnson v. Yellowman, 7 Nav. R. 545 (Ship. Dist. Ct. 1997).

• The Court presumes that legislators acted with proper motives. Benally v. Gorman, 5 Nav. R. 272 (W.R. Dist. Ct. 1987).

3. Legislature is presumed to know the law

• As a general rule, a legislature is presumed to know the law. Navajo Nation v. Yellow, 7 Nav. R. 81 (Nav. Sup. Ct. 1994).

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B. Manner of reading statutes

1. Enforcing the plain meaning of the statute

• The court will begin statutory construction by reading applicable statutes on their face. Judy v. White, 8 Nav. R. 769 (Chin. Dist. Ct. 2002).

• If the language of a statute is clear, the Court applies the meaning the Council clearly intended. Matter of Appeal of Vern R. Lee, No. SC-CV-32-06, slip op. (Nav. Sup. Ct. August 11, 2006).

• The Court enforces the plain meaning of a statute where the language is clear. Begay v. Chief, 8 Nav. R. 654 (Nav. Sup. Ct. 2005).

• Older Navajo case law establishing the “plain meaning” of a statute is still binding. Begay v. Chief, 8 Nav. R. 654 (Nav. Sup. Ct. 2005).

• The Court applies the plain language of a statute directly when it applies and clearly requires a certain outcome. Tso v. Navajo Housing Auth., 8 Nav. R. 548 (Nav. Sup. Ct. 2004).

• When the language of a statute is clear, plain and unambiguous, it must be held to mean what it says. Barton v. Navajo Nation Ethics and Rules Office, 8 Nav. R. 353 (Nav. Sup. Ct. 2003).

• Before dipping ones toes into a maelstrom of institutional prerogatives, it is best to first read a statute to ascertain what it means. In the Matter of Certified Question, 8 Nav. R. 132 (Nav. Sup. Ct. 2001).

• In interpreting a statute, the Court looks first to the plain meaning of statutory language. Dilcon v. Jensen, 8 Nav. R. 28 (Nav. Sup. Ct. 2000).

• In matters involving statutory interpretation, the Court initially looks to the language of the statute and attempts to decipher a meaning from the words it uses. PC&M Const. Co. v. Navajo Nation, 7 Nav. R. 58 (Nav. Sup. Ct. 1993).

• An unambiguous statute is enforced according to its terms. PC&M Const. Co. v. Navajo Nation, 7 Nav. R. 58 (Nav. Sup. Ct. 1993).

• A statute must be read on its face to determine its intent and purpose. ONLR v. NHA, 7 Nav. R. 50 (Nav. Sup. Ct. 1993).

• When the language of a statute is clear, plain and unambiguous, it must be held to mean what it says. ONLR v. NHA, 7 Nav. R. 50 (Nav. Sup. Ct. 1993).

• The plain language of a criminal statute controls, and any doubt as to the meaning of a penal statute is resolved in defendant's favor. Navajo Nation v. MacDonald, Sr., 6 Nav. R. 432 Nav. Sup. Ct. 1991).

• Courts must construe the plain language of a criminal statute and resolve any doubt as to the meaning of a penal statute in favor of the defendant. Navajo Nation v. Platero, 6 Nav. R. 422 (Nav. Sup. Ct. 1991).

• We follow the general principle of statutory construction that we must construe the statute on its face. Pioche v. v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 360 (Nav. Sup. Ct. 1991).

• Plain and unambiguous statues will be given effect as written. N.N. Div. of Resources v. Spencer, 5 Nav. R. 109 (Nav. Sup. Ct. 1986).

• In matters involving statutory interpretation, the Court initially looks to the language of the statute and attempts to decipher a meaning from the words it uses. Johnson v. Dixon, 4 Nav. R. 108 (Nav. Ct. App. 1983).

• A statute must be read on its face to reach a reasonable conclusion which follows from the obvious intent and purpose of the statute. Becenti v. Laughlin, 4 Nav. R. 147 (W.R. Dist. Ct. 1983).

• When the language of a statute is clear, plain and unambiguous, it must be held to mean what it says. Keith v. Allred, 3 Nav. R. 191 (Chin. Dist. Ct. 1981).

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2. Must read statute comprehensively; avoiding invalidation of any provision

• A court must read a statue as a whole (meaning that you read every part of the statute, from the preamble through the actual enactments) and avoid taking it out of context. Judy v. White, 8 Nav. R. 769 (Chin. Dist. Ct. 2002).

• The Supreme Court reads provisions of a statute comprehensively to further the purposes of the law, making sense of all statutory requirements and avoiding, whenever possible, the invalidation of any provisions. Kesoli v. Anderson Security Agency, 8 Nav. R. 724 (Nav. Sup. Ct. 2005).

• A statute cannot be read by taking legal terms out of their proper context. Claim of Ray Joe, Jr., 7 Nav. R. 66 (Nav. Sup. Ct. 1993).

• The intent of the Council is ascertained by reading the statute as a whole. Claim of Ray Joe, Jr., 7 Nav. R. 66 (Nav. Sup. Ct. 1993).

3. Permissible inferences when interpreting statutes

• It is reasonable to infer that the inclusion of certain traditional prohibitions in the Code but the exclusion of others means that the Council intended those reasons to be the only traditional impediments to a lawful common-law marriage. Matter of Marriage of Smith and Begay, No. SC-CV-45-05, slip op. (Nav. Sup. Ct. July 19, 2006).

4. Must read statutes consistent with their purpose

• A statute must be interpreted to accomplish its purpose. Judy v. White, 8 Nav. R. 769 (Chin. Dist. Ct. 2002).

• Social security statutes, such as the Workmen’s Compensation Act, must be read in light of their purpose. Claim of Ray Joe, Jr., 7 Nav. R. 66 (Nav. Sup. Ct. 1993).

• Statutes must be interpreted to accomplish their purpose. Navajo Nation v. MacDonald, Jr., 7 Nav. R. 1 (Nav. Sup. Ct. 1992).

• In searching for the intent of the Navajo Nation Council within its enactments we look to the purpose of the law. MacDonald, Sr. v. Navajo Nation, 6 Nav. R. 290 (Nav. Sup. Ct. 1990).

• To give a statute liberal construction, it must be given liberal interpretation in accordance with its express purposes. Correlatively, exceptions to the coverage of such legislation are narrowly construed. The aim of such legislation is to attain simplicity and directness. The administrative provisions of those laws must not be narrowly construed. APS v. ONLR, 6 Nav. R. 246 (Nav. Sup. Ct. 1990).

• The Court must interpret and construe tribal statutes to effectuate the intent of the Tribal Council. Begay v. Navajo Nation, 6 Nav. R. 20 (Nav. Sup. Ct. 1988).

• The Court must interpret and construe tribal statutes to effectuate the intent of the Tribal Council. N.N. Div. of Resources v. Spencer, 5 Nav. R. 109 (Nav. Sup. Ct. 1986).

5. Interpreting federal statutes

• When interpreting a federal statute, court must look first to the language of the statute itself and examine the statute as a whole. Stago v. Wide Ruins Community School, 8 Nav. R. 259 (Nav. Sup. Ct. 2002).

• To understand a federal statute, the Court may look at the intent of the relevant legislative body. A primary resource for determining Congressional intent is the legislative history of the statute. Stago v. Wide Ruins Community School, 8 Nav. R. 259 (Nav. Sup. Ct. 2002).

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• The courts of the Navajo Nation must conform their decisions to applicable federal law. Biakeddy v. Biakeddy, 6 Nav. R. 391 (Nav. Sup. Ct. 1991).

• The presumption is that a federal statute is not intended to make a radical change in Indian affairs, thus federal statutes should be construed in favor of retained tribal self-government. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988).

• Federal statutes passed to benefit Indians are construed to favor the Indians. The policy for this construction is rooted in the special trust relationship between the United States and Indian tribes. Billie v. Abbot, 6 Nav. R. 66 (Nav. Sup. Ct. 1988).

• Navajo courts will make their own independent interpretation of an enactment of the Congress of the United States, guided by the general precedents of the Courts of the United States and States around the country, and we will not be bound by any decision of the State of Arizona, New Mexico or Utah (depending upon where the dispute arises) or a United States Dist. Ct. for the federal judicial districts in those states. In other words, the Navajo courts have been given the specific authority to make an independent interpretation of federal law, and because of that independent authority the Navajo courts are not bound by local federal or state interpretations of such statutes. Manygoats v. GMAC, 4 Nav. R. 94 (Nav. Ct. App. 1983).

• Navajo courts will follow definitive rulings of the United States Supreme Court in interpreting a statute, as well as definitive regulations and rulings of any federal administrative agency which is authorized to interpret and enforce the statute. Navajo courts will give court rulings from this region great weight. Manygoats v. GMAC, 4 Nav. R. 94 (Nav. Ct. App. 1983).

• The Council has given Navajo courts the power to engage in their own reasonable and guided interpretation of federal law. Manygoats v. GMAC, 4 Nav. R. 94 (Nav. Ct. App. 1983).

• Navajo courts are empowered, with the consent of the Secretary of the Interior, to apply federal law. Benally v. John, 4 Nav. R. 39 (Nav. Ct. App. 1983).

6. Statutes using the word “shall” impose mandatory obligations

• Statutes that contain the word shall are mandatory and must be followed. Haskie v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 336 (Nav. Sup. Ct. 1991).

• Statutes that contain the word shall are mandatory and must be followed. Navajo Nation v. Redhouse, 6 Nav. R. 305 (Nav. Sup. Ct. 1990).

• Statutes that contain the word shall are mandatory and must be followed. Mustach v. Nav. Bd. of Elec. Supervisors, 5 Nav. R. 115 (Nav. Sup. Ct. 1987).

7. Where plain reading leads to an absurd result, court must look to intent of Council

• A court must read the law in such a way as to avoid absurd results. Judy v. White, 8 Nav. R. 769 (Chin. Dist. Ct. 2002).

• Where a strict construction of tribal law would lead to an absurd result, the Court must balance the effects of a literal interpretation against the legislative intent and a reasonable means to accomplish it. McCabe v. Walters, 5 Nav. R. 43 (Nav. Ct. App. 1985).

• Where a strict construction of a statute would lead to an absurd result, it will not be used. In the Matter of Practice of: William P. Battles, 3 Nav. R. 92 (Nav. Ct. App. 1982).

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8. Read laws covering the same subject together

• A court must read all applicable statutes in paria materia (a Latin phrase meaning to read all the statutes together in harmony with each other, insofar as is possible), and read them in light of their contemporary history and the intent of the Navajo Nation Council. Judy v. White, 8 Nav. R. 769 (Chin. Dist. Ct. 2002).

• One reads laws by reading the laws which cover the same subject together. In the Matter of Practice of: William P. Battles, 3 Nav. R. 92 (Nav. Ct. App. 1982).

9. Obligations of public officials are considered mandatory if they are for the public good

• The actual word used in the statute is not necessarily controlling when determining whether a duty of a public official is discretionary or mandatory. If a statute directs the doing of something for the public good or for the benefit of a third person, even though worded as discretionary, it will be considered mandatory. In re Certified Questions II, 6 Nav. R. 105 (Nav. Sup. Ct. 1989).

C. Motives of legislature are relevant only in cases of fraud or bad faith

• If the legislative body did a proper and legal act, the court will not examine the motive of the legislators. Motives will be examined only to the extent needed to determine if the legislative action should be invalidated on grounds of fraud and bad faith. Johnson v. Yellowman, 7 Nav. R. 545 (Ship. Dist. Ct. 1997).

• If the legislative body did a proper and legal act, the court will not examine the motive of the legislators. Motives will be examined only to the extent needed to determine if the legislative action should be invalidated on grounds of fraud and bad faith. Benally v. Gorman, 5 Nav. R. 272 (W.R. Dist. Ct. 1987).

D. Resolving civil rights challenges on narrower grounds

• The Supreme Court follows the rule that when asked to address the validity of a statute under the Bill of Rights, it first looks to see whether it can resolve the issue on narrower grounds. Yazzie v. Thompson, 8 Nav. R. 693 (Nav. Sup. Ct. 2005).

• The Supreme Court follows the rule that when asked to address the validity of a statute under the Bill of Rights, it first looks to see whether it can resolve the issue on narrower grounds. Begay v. Navajo Election Admin., 8 Nav. R. 241 (Nav. Sup. Ct. 2002).

• Appellate courts will not normally reach constitutional issues if the true question is one of application of law. Navajo Nation v. MacDonald, Sr., 6 Nav. R. 222 (Nav. Sup. Ct. 1990).

E. Necessity of ascertainable standards for statutes impacting liberty

• Statutes which implement liberty rights must have ascertainable standards. Rough Rock Comm. Sch. v. Navajo Nation, 7 Nav. R. 168 (Nav. Sup. Ct. 1995).

• Statutes which limit political liberty must be based upon reasonable public policy and they must give the regulating body concrete guidance as to their application. A statute must contain clear and objective measures of the standard to be applied to prevent abuses of discretion. Rough Rock Comm. Sch. v. Navajo Nation, 7 Nav. R. 168 (Nav. Sup. Ct. 1995).

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• Ascertainable standards in the sense of making things "certain and definite" is a Navajo common law requirement as well. Rough Rock Comm. Sch. v. Navajo Nation, 7 Nav. R. 168 (Nav. Sup. Ct. 1995).

• The Supreme Court must read statutes which limit the liberty right to run for public office so as to avoid arbitrary application or selective enforcement. Howard v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 380 (Nav. Sup. Ct. 1991).

F. Navajo understanding of English words may differ from non-Navajo understanding

• The Navajo understanding of the English words adopted in statutes may differ from the accepted Anglo understanding. Navajo Nation v. Rodriguez, No. 8 Nav. R. 604 (Nav. Sup. Ct. 2004).

G. Legislation must not permit abuses of discretion

• Legislation which creates discretionary authority must not permit abuses of that authority. Rough Rock Comm. Sch. v. Navajo Nation, 7 Nav. R. 168 (Nav. Sup. Ct. 1995).

• Navajo thought deplores abuses of authority because of the consensual and egalitarian principles of governance. Any statute which permits such unregulated abuses of discretion in derogation of the Navajo common law is void. Rough Rock Comm. Sch. v. Navajo Nation, 7 Nav. R. 168 (Nav. Sup. Ct. 1995).

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H. Statutes must be rationally related to legitimate governmental purposes

• A factor in determining whether an act is proper and legal is whether the legislative action is rationally related to a legitimate governmental purpose. Johnson v. Yellowman, 7 Nav. R. 545 (Ship. Dist. Ct. 1997).

• A factor in determining whether an act is proper and legal is whether the legislative action is rationally related to a legitimate governmental purpose. Navajo Nation v. MacDonald, 6 Nav. R. 463 (W.R. Dist. Ct. 1989).

• A factor in determining whether an act is proper and legal is whether the legislative action is rationally related to a legitimate governmental purpose. Benally v. Gorman, 5 Nav. R. 272 (W.R. Dist. Ct. 1987).

I. Impact of invalidating statutes

• If a legislative act is subjected to judicial review and the court subsequently makes a decision that the act is valid it does not become valid from the date of that decision, but, because of the presumption of validity, the act is valid from the point of passage. Navajo Nation v. MacDonald, 6 Nav. R. 463 (W.R. Dist. Ct. 1989).

• In the event a legislative act is declared invalid as a result of judicial review, it is not necessarily a nullity or retroactively invalid. Navajo Nation v. MacDonald, 6 Nav. R. 463 (W.R. Dist. Ct. 1989).

• An officer appointed to a public post under a statute subsequently held to be invalid is treated in law as a de facto officer. His acts during the period before the statute was held invalid are binding upon the community. Navajo Nation v. MacDonald, 6 Nav. R. 463 (W.R. Dist. Ct. 1989).

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VI. The process of enacting statutes

A. The determination of which resolutions constitute legislative acts

• The Navajo Nation Council adopts many kinds of resolutions, which may approve, disapprove or recommend some action, but not all are legislative acts in the legal sense of statutes or legislation as such, which carry the weight of law. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004).

• A resolution is the formal expression of an official body or public assembly adopted to express an opinion, recommendation or policy direction. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004).

• Resolutions play an important part in legislative history, to memorialize the motivation behind the passage of legislation, but resolutions cannot be substitutes for properly-enacted legislation. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004).

• The Navajo Nation Council adopts many kinds of resolutions, which may approve, disapprove or recommend some action, but not all are “legislative acts” in the legal sense of statutes or legislation as such, which carry the weight of law. In the Matter of Certified Question, 8 Nav. R. 132 (Nav. Sup. Ct. 2001).

B. Enacting legislation

1. Underlying laws must be valid

• Resolutions passed pursuant to an invalid law, even if all procedures are properly followed, are invalid. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004).

2. Enacting procedures must be strictly followed

• Procedural requirements for the enactment of Navajo Nation legislation must be strictly observed. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004).

• Placing such importance on procedural requirements ensures consistency in enacting legislation and allows notice to everyone involved about exactly what the new legislation will provide, if approved. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004).

• Where statute included language that was neither in the Election Code as proposed to the Navajo Nation Council nor added during the debate on the Code, as a matter of Navajo law, it simply has no validity. Bennett v. Nav. Bd. of Elec. Supervisors, 7 Nav. R. 161 (Nav. Sup. Ct. 1995).

3. Procedures for enacting statutes

• The plain language of 2 N.N.C. § 164 requires that certain officials must review and sign a proposed Council resolution. In the Matter of Certified Question, 8 Nav. R. 132 (Nav. Sup. Ct. 2001). Note: this holding is presented in strikeout format because 2 N.N.C. § 164 has been amended subsequent to this holding. Reference should now be made to the current version of the statute.

• Because Section 164 was intended to establish the fundamental structure and operations of the Navajo Nation Government, the review and signature process was mandatory, and following the prescribed procedures is a condition precedent to the validity of Navajo Nation legislation. In the Matter of Certified Question, 8 Nav. R. 132 (Nav. Sup. Ct. 2001). Note: this holding is presented in strikeout format because 2 N.N.C. § 164 has been amended subsequent to this holding. Reference should now be made to the current version of the statute.

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• In 2 N.N.C. § 164, the authorities required to review proposed resolutions, and most particularly the Attorney General and the Legislative Counsel, must “determine whether each proposed resolution is legally sufficient.” In the Matter of Certified Question, 8 Nav. R. 132 (Nav. Sup. Ct. 2001). Note: this holding is presented in strikeout format because 2 N.N.C. § 164 has been amended subsequent to this holding. Reference should now be made to the current version of the statute.

• 2 N.N.C. § 165 requires that all resolutions proposing new laws or amendments of laws shall clearly indicate new language by underscoring the new language and deletion by overstrike and shall refer to appropriate Navajo Nation Code titles and sections. In the Matter of Certified Question, 8 Nav. R. 132 (Nav. Sup. Ct. 2001).

• Legislation must be reviewed by the President for a potential veto. In the Matter of Certified Question, 8 Nav. R. 132 (Nav. Sup. Ct. 2001).

C. Power of legislative committees

• The Advisory Committee does not have the power to waive specific statutory requirements unless the Council expressly grants such authority. Office of Navajo Labor Rel. ex rel. Bailon v. Central Consolidated School Dist., 8 Nav. R. 501 (Nav. Sup. Ct. 2004).

• The Advisory Committee does not have the power to amend the Sovereign Immunity Act. Blaze Const. v. Crownpoint Inst. of Tech., 7 Nav. R. 296 (Nav. Sup. Ct. 1997).

D. Council must follow its own laws

• Once the Council passes and approves any resolution binding themselves by that law, they are bound by such law – they are then bound by such law and can only do what by law they themselves established allows them to do. Halona v. MacDonald, 1 Nav. R. 341 (Ship. Dist. Ct. 1978).

• The Council cannot violate their laws nor can they place themselves above the laws they create. Halona v. MacDonald, 1 Nav. R. 341 (Ship. Dist. Ct. 1978).

VII. Election statutes

• There are unique rules of statutory interpretation for election laws. Haskie v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 336 (Nav. Sup. Ct. 1991).

• It is easier to correct errors when they surface before an election than it is when they are raised after an election, when the electorate has already made their choice. Haskie v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 336 (Nav. Sup. Ct. 1991).

• Election statutes are mandatory when enforcement is sought prior to an election, but they are read to be directory only when challenges are raised after an election. Haskie v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 336 (Nav. Sup. Ct. 1991).

• The law presumes that elections which have already been held were conducted regularly and validly. Haskie v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 336 (Nav. Sup. Ct. 1991).

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VIII. Criminal statutes

1. Doubts resolved in favor of criminal defendants

• The plain language of a criminal statute controls, and any doubt as to the meaning of a penal statute is resolved in defendant's favor. Navajo Nation v. MacDonald, Sr., 6 Nav. R. 432 (Nav. Sup. Ct. 1991).

• Courts must construe the plain language of a criminal statute and resolve any doubt as to the meaning of a penal statute in favor of the defendant. Navajo Nation v. Platero, 6 Nav. R. 422 (Nav. Sup. Ct. 1991).

2. Criminal statutes must be clear and certain

• Criminal offenses can be void for vagueness in situations in which criminal responsibility should not attach because one could not reasonably understand that contemplated conduct is proscribed. Navajo Nation v. Castillo, 8 Nav. R. 866 (Crwn. Dist. Ct. 2005).

• Legislative acts creating crimes must be clear and certain. They must provide reasonable and adequate guidance to a person who would be law abiding so that he can comprehend what activity is to be avoided. Keeswood v. Navajo Tribe, 1 Nav. R. 362 (Nav. Ct. App. 1978).

• Juries and judges cannot reasonably come to conclusion of guilt or innocence when it is uncertain what the lawmakers intended to proscribe. Keeswood v. Navajo Tribe, 1 Nav. R. 362 (Nav. Ct. App. 1978).

• The certainty and clarity in the construction of a criminal statute is a must if it is to meet the fundamental test of due process or the law must be struck down. The responsibility rests squarely on legislative shoulders and an added responsibility in this instant case is the proper publication of the newly created crime. What good is a newly created crime if the knowledge of its existence is known only to the Legislative and Executive Branches of government? Since the conduct of the Navajo public in general is to be controlled by this statute, it is only fair that they receive fair notice. Our traditional and cultural customs mandate such notice because it holds that no one should be held responsible for a prohibited conduct unless that person is first informed that such a conduct or activity will be prohibited. Based upon this traditional concept, this Court concludes that not only must the construction of the criminal statute be certain and clear in its meaning but it must be published. Keeswood v. Navajo Tribe, 1 Nav. R. 362 (Nav. Ct. App. 1978).

3. Criminal statutes must not be a trap

• Persons subject to the law cannot in fairness be exposed to governmental controls which trap them. Keeswood v. Navajo Tribe, 1 Nav. R. 362 (Nav. Ct. App. 1978).

4. Heightened scrutiny for statutes creating multiple offenses for single act

• The Court will apply heightened scrutiny to provisions that allegedly create separate offenses based on a single action, and in the absence of clear intent that the statutory offenses indeed punish separate conduct, multiple convictions for the same action will be barred by double jeopardy. Navajo Nation v. Kelly, No. SC-CR-04-05, slip op. (Nav. Sup. Ct. July 24, 2006).

• Multiple charges under multiple statutory offenses for a single action undermine that finality, as conviction for a single offense does not resolve the entire dispute. The Navajo Nation courts therefore cannot lightly apply multiple statutory offenses to a defendant's single action. The

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Council must clearly intend the separate offenses to punish separate conduct, and therefore resolve separate disputes. Navajo Nation v. Kelly, No. SC-CR-04-05, slip op. (Nav. Sup. Ct. July 24, 2006).