Navajo Nation Court Land Decisions 1971-2021

In The Matter of the Estate of Lee (1971), decedent’s land use permit was contested between his widow and children who lived in the household and used the land, and decedent’s mother and brother who had joined the household temporarily to care for the children while both Mr. and Mrs. Lee were seriously ill. The mother and brother claimed that Mr. Lee had stated his preference for them to receive the permit but neither Mrs. Lee nor the children were present. 

The court combined Diné reasoning with law to reach the culturally proper result, which was for the matriarch (Mrs. Johnson)  to continue in her role. The court stated that Mr. Lee’s verbal preference was the established custom where “a Navajo may orally state who shall have his property after his death when all of his immediate family are present and agree that such a division will be honored. We know of no other custom in this respect.” (The preference referred to by the court is yee ádeehadoodzííh, what is known to be true, and which is discussed at the post-burial meeting, biyéél naalchid naahgó hwól’įįh t’áádoo dįį yiłkaahí). The court then deemed such verbal preferences may be valid wills, if done in accordance with proven Tribal custom. In this case, the court decided there was no valid will because not all of Mr. Lee’s immediate family were present, nor was any oral will raised at the post-funeral family meeting.  

Additionally, the court rejected the temporary land use nature of permits, deeming that a permit is, instead, an interest in land that can be willed, inherited and probated. Thus, writing a preference on the back of a permit no longer became sufficient for disputed permits. 

Consequences: Yee ádeehadoodzííh henceforth would become known as oral wills, burdened with legalities of probate. In almost every family, land use permits on tribal trust land would become heavily contested in probate and quiet title court proceedings. (Note that while there is a federal law requirement to probate allotments, there is no federal law requirement to probate all other permits and leases). 

In Estate of Nelson (1977), it was asserted that decedent had given his grazing permit to his brother and sister while he was still living. Decedent had spoken of this gift, even announced it to the Grazing Committee, suggesting that the brother and sister were already using the permit. However, the bill of transfer, although signed by him, was not complete. Adding complication, decedent had a grown daughter, and half the permit had belonged to his wife who had relinquished her share with neither the wife or daughter asserted to have used the permit. The court decided that a gift of a permit during a holders’ life must be treated like a deed for real property that must be transferred through a completed written instrument that showed the gifter had surrendered “dominion and control” over the permit. The court’s reasoning was that land “is of primary important to the Navajo people” and so the importance of land transfers must not be “cheapened” by requiring less than this. Noting that there was no will, the court then upheld the daughter’s award of the permit under “community property” law.

Consequences: Likening a permit to a deed in which a completed written conveyance is needed, the court intended to elevate Navajo land as equal to non-Indian land, but may have achieved an opposite result. Left unaddressed is the customary principle of who is actually using the permit and who is in decedent’s household. The court also was dismissive of decedent’s publicly-expressed preference in front of the official Grazing Committee body, focusing instead on the court’s responsibility to determine if the permit was legally given away during decedent’s lifetime, thus imposing the law framework on customary practice.

It must be noted that families still hold land on the basis of crumpled sometimes barely legible slips of handwriting, through which permits or customary land areas were gifted or sold to them decades ago. 

Estate of Benally v. Benally (1978) was a grazing permit dispute, between the children of decedent’s first marriage who did not live with him, and the wife and children of his second marriage who were in decedent’s household. Decedent’s second family asserted that decedent had made an oral will in their presence for the permit to go to his second wife. Decedent’s first family stated there was no oral will because they, as immediate family, had not been present. 

For purposes of an oral will, the court defined “immediate family” as members of decedent’s household, whether or not related by blood, which is how the family was traditionally defined when distributing a decedent’s possessions. However, due to practicalities and hardship, Navajo extended family members who are not household members, are excluded.

Consequences: The court’s definition of “Diné immediate family” came to be buried over time, because it is at odds with modern Anglo definitions of “immediate family.” The court’s definition was misunderstood and rejected by later judges who took their guidance from Anglo concepts of family.

In Johnson v. Johnson (1980), a divorcing couple with children contested the household’s permits (home, land use, and grazing) including a land use permit that Mr. Johnson had received as a gift from his own father. The court stated that the culturally proper result would be for the homestead to remain intact in the hands of the “more reliable person,” which was Mrs. Johnson, despite different permits of different origins in the names of different spouses. The court further awarded all permits to Mrs. Johnson. 

Defying Anglo divorce law concepts and also the reality of individually-named leases and permits, the court applied Diné reasoning and kept the multi-use homestead intact. 

Consequences: This is a defiant case that upholds Diné customary land management over other concepts, including the system of leases and permits managed by the BIA at the time, as well as concepts of individually-owned parcels that was even then carving their way into tribal common law. The decision describes succinctly the desired matriarchal customary land management arrangement, and has never been overturned. However, later judges have avoided this decision. Despite it never being overturned, the decision is rarely cited or followed.

In Shorty v. Shorty (1982), the court decided that a homesite lease in a divorce is community property, and that it must be sold at “market value.” The proceeds from the sale must then be divided between the divorcing spouses, or else they must buy each other out, in accordance with Anglo divorce law. 

Consequences: This decision appears to have been written by a lawyer with no knowledge of reservation land use management, nor of Diné culture and Diné customary land management. Solely applying Anglo law divorce concepts, the decision ignored previous decisions and even reality in deeming community land as property that can be readily sold for money in an open market. (Leases and permits are subject to administratively complex conditions that obscure “market value” of tribal trust land leases and permits).

In Estate of Wauneka (1986), 10 acres that had been fenced, farmed and grazed by decedent without a permit was disputed by his son who wanted the intact land, by other heirs who wanted the land broken up; and an alfalfa farmer who said he had purchased part of the land from decedent and was continuing to use it. Unable to prove his purchase, the farmer abandoned the dispute. The court likened decedent’s land to a customary use area traditionally inhabited by ancestors, which is unique and unlike ownership off-reservation, the court observing that “every acre on the reservation not reserved for a special purpose is a part of someone’s customary use area.” The court found that decedent had established “use rights to the land through a lifetime of continuous and exclusive use,” as shown by improvements on the land. The court then awarded the land intact to the son who clearly would work the land, observing tribal land policy to prevent fragmenting permitted land, that the other heirs had stated their intent to sell or transfer their parcels.

Consequences: The court applied Diné reasoning in this case to a very great extent to ensure land, even without a permit, was given intact to the person who would use it. The evidence the court set forth for proving a customary land use area would soon become part of the Navajo Nation Code. 

Hwéeldi: The notion that land not beneficially used is part of someone’s customary use area is based on historical tragedy. Continuous use of ancestral land had been permanently interrupted when, in 1863, the U.S. Cavalry marched through Navajo Country attacking and killing Diné at their camps, slaughtering livestock, burning hogans and crops, and virtually destroying any property and food supply the people would need to survive. 8,500 starving Diné surrendered over several months and were death-marched on foot over 400 miles to captivity at Fort Sumner (called Hwéeldi) in eastern New Mexico. The few who eluded capture hid, unable to farm due to continuing raids of the U.S. Cavalry. Untended customary lands came to be reserved for the captives’ return. More than 2,000 Diné died in captivity, not counting those who perished on the forced march. Upon release, countless Diné simply dispersed. Customary land remains permanently unclaimed by ancestral users who never returned. See Hwéeldi (Ray Austin).

In Dawes v. Yazzie (In re Estate of Belone) (1987), a very large grazing permit of almost 200 sheep units, and 35 acres of farmland, were disputed by Ms. Dawes, who was decedent’s brother’s widow, after the permits had been divied and given partly to her, and partly to a woman who had been raised like a daughter by decedent. Decedent was a single woman with no blood children. Ms. Dawes asserted that she was entitled to all decedent’s permits under state laws of inheritance, due to a requirement in the Navajo Nation Code at 8 N.N.C. § 2(b) that state law must be used to determine heirs if custom is not “proven.” Ms. Dawes said that a traditional adoption should have been raised the pleadings, but was not raised nor had any custom of traditional adoption been proven by an expert. Conceding her arguments, the court ordered that all permits be given to Ms. Dawes. The Court applied Anglo reasoning as to how custom must be shown in a procedurally orderly manner, including how experts (even in Navajo custom) are to be recognized, how judges must support their findings of custom, and when a judge may simply take judicial notice of a custom that is “generally known.” The court also stated that, like Anglo caselaw, previously proven custom are now Navajo “common law.” 

Consequences: The law-based manner of proving custom through experts in this decision has not been easily implemented, as traditional knowledge holders avoid sharing knowledge with governmental systems. Those who do come forward may have limited or incomplete knowledge. This may lead to misunderstandings and mistaken conclusions on customary practice. 

In 2002 Diné bi beenahaz’áanii (the Diné Fundamental Law) was enacted, which should require Diné reasoning (rather than Anglo law) be used in approaching how custom is introduced and proven. However, as of December 2, 2022, the requirements of 8 N.N.C. § 2(b)for proving custom remains unchanged. 

In Estate of Benally (1987), heirs under state law were decedent’s husband and six children, the oldest of whom was from a previous marriage. In dispute were 2 grazing permits in decedent’s name: one that she brought into her second marriage; and the other that was obtained during the second marriage. On the back of the second permit were written the names of her three oldest children. Not named on the permit were her husband and three youngest children. The family were fighting over the permit and could not agree. In the end, the court said the best outcome was a customary trust among those who could agree, with the remaining heirs getting compensation. Otherwise, the permits could be divided, or given intact to the most logical heir who can make the most beneficial use of the permits. 

“Customary trust” had been briefly mentioned in Estate of Wauneka the year before. Here, the court stated that the “customary trust is so called because, in Navajo custom, land is held and managed for the benefit of the clan and the family.”  The court distinguished such a “trust” from a joint tenancy under Anglo law in which there is there is right of survivorship, stating that such joint tenancies “do not apply to the customary trust, which is a product of Navajo common law.” Nevertheless, the court applied the joint tenancy concept of survivorship and indivisibility of interests to customary trusts, “so long as heirs can cooperate.” Yet, such a joint tenancy trusteeship concept was not further developed, and has never been applied. 

Consequences: The “customary trust” is unknown to traditional land use practitioners, to whom the values of the matriarch-managed household, t’ááłá’ k’ǫ‘diltłi’dóó biyaadahoo’á’ígíí, inherently conflict with Anglo property ownership concepts and with the mandates of the lease and permit system itself. The “Navajo customary trust” is widely viewed as a failed innovation of the tribal bench, since the court never defined it nor the powers of the community trustee, and also emphasized voluntariness and ability of parties to cooperate in order for the “trust” to be created.

This decision requires Navajo Nation family courts to apply Anglo common law concepts of individual ownership, rather than communal, land “trust” like holdings when parties are unable to cooperate. By formalizing individual ownership and descent when there is conflict, this decision breaks down communal practices even further and dis-incentivizes family consensus and communal land management. In the decades since this decision, land disputes have riven apart practically every family as absentee heirs pressed claims on grazing permits due to their unique regulatory potential to be converted to homesite leases for future generations. Absentee claimants, usually better educated and also able to afford legal representation, often prevail over their reservation relatives, using this case to gain land they do not intend to use, simply by informing the court the family is unable to cooperate.

This case did not sit well with later judges. In 1991, in Begay v. Keedah (1991), the court redefined the “customary trust” concept, condemned the fiction of permits, and asserted communal Diné land use as the true nature of the individually-held leases and permits imposed by the Indian Agents and the BIA.

In Begay v. Keedah (1991), the BIA court in 1956 gave to a widow the grazing permit of an individual thought to be deceased. When the individual turned up alive in 1957, the BIA court said he was mentally incompetent and gave the permit to his oldest daughter Margaret to serve as trustee of the permit for her two younger sisters. The “BIA court” – part of the BIA but made up of Navajo judges – was a precursor of the Navajo Nation courts that were established in 1959.

When Margaret died 32 years later, a dispute arose between Margaret’s children, who were using the land, and the BIA, whose lawyer said that the trust had dissolved upon Margaret’s death, requiring the permit to pass to Margaret’s two sisters who were not disputing the permit, and had never used the permit. Margaret’s children asserted that the permit should descend to them as Margaret’s heirs who were also the actual land users, and that the 1957 trust created by the BIA was illegal under Anglo common law. 

Engaging in a frank discussion that has become the most important discussion of the conflicting values of the land use systems imposed on Diné communities, the Navajo Nation Supreme Court ruled that the 1957 trust was a “customary trust.” The “most logical heir” who would put land to beneficial use would normally be named on the permit.

Reasoning of the court: In the court’s thinking, the “customary trust” is a device invented by Navajo judges to justify the true communal or group nature of permits. Since permits were issued in the names of individuals, the “customary trust” is a mechanism to justify holding of the permit by all those actually putting the land to beneficial use. “Heir” in the Navajo sense is, therefore, tied to beneficial use. The court confirmed that a permit is not a form of land title in which there are individual rights, even though the system required the name of an individual to be written on it. Instead, the court emphasized the almost absolutely communal nature of Navajo land tenure based on traditional expectation that takes precedence over American common laws, and that this was understood by “Navajo judges (who) knew they would have to supply a justification to get BIA officials to honor their decrees.”

The court stated:

“The judges . . . understood the concepts of communal land use and grazing permit tenure well. They also understood that the Navajo Indian agent and later the BIA agency superintendent operated using a different set of rules. American law generally establishes the right of individuals, and does not recognize the right of groups. Therefore, the Navajo judges knew that a grazing permit would have to be in the name of one individual. However, because Navajos share grazing rights with others, there had to be a method to protect the group. That method is the Navajo “customary trust” for grazing permits, which was developed by the Navajo judges.”

While some law had previously developed regarding the need for voluntariness and ability to cooperate in order to create “customary trust” four years earlier in Estate of Benally (1987), this decision asserts that all permits based on traditional expectation are, in fact, customary trusts, with each permit standing for communal rights of those using it, and not individual rights of the individual named on it. The permit is not to be fragmented, and the person named on a permit (the most logical heir) is no more than a “trustee,” named on the permit on behalf of other beneficial users in the group.

Consequences: This clear-sighted, insightful decision, based on cultural reasoning, stands alone in tribal land jurisprudence, followed only when the permit holder agrees and parties are able to cooperate. Estate of Benally (1987) remains the controling decision when cooperation cannot be reached by the parties. 

In Riggs v. Estate of Attakai (2007), a maternal grandfather had given a grazing permit to 15 year old Mary Lou “to be used for the family,” and in fact the permit was used by Mary Lou’s mother and sisters. Mary Lou moved away when she married and had children, moving back only with her husband some years later. When she passed, a probate court gave her permit to her son, Tom, even though he lived far from the area, in order that the permit would give him and his sisters a “sense of home.” Mary Lou’s sister, Sista Riggs, disputed the award, as she was already managing herds for the family on this permit and also another permit in her name that was received from their deceased mother.

Fully applying Begay v. Keedah, the Court added the requirement that permits must attach to Diné matrilineal lines. Below is just a portion of the court’s lengthy reasoning.

“The Court now holds that (the Keedah factors) are to be considered and applied consistent with the Navajo Fundamental Law which defines the role and authority of Diné women in our society. Traditionally, women are central to the home and land base. They are the vein of the clan line. The clan line typically maintains a land base upon which the clan lives, uses the land for grazing and agricultural purposes and maintains the land for medicinal and ceremonial purposes. The crucial role of women is expressed in the principles established by White Shell Woman and are commonly referred to as Yoolgaii Asdzaan Bi Beehazaanii. These principles include Iina Yesdahi (a position generally encompassing life; heading the household and providing home care, food, clothing, as well as child bearing, raising, and teaching), Yodi Yesdahi (a position encompassing and being a provider of, a caretaker of, and receiver of materials things such as jewelry and rugs), Nitl’iz Yesdahi (a position encompassing and being a provider of and a caretaker of mineral goodness for protection), Tsodizin Yesdahi (a position encompassing spirituality and prayer). This is why the women are attached to both the land base and the grazing permits. For the most part, Navajos maintain and carry on the custom that the maternal clan maintains traditional grazing and farming areas.”

Consequences: For the first time in the development of Navajo common law, the Navajo Nation Supreme Court established as law the Diné matriarchal-matrilineal custom, and ordered the permit be given to Sista Riggs to hold as trustee for Tom’s sisters. The decision was questioned as supporting gender discrimination. However, the court stated that its reasoning was based on reconciling statutory and Diné Fundamental Law, Diné  bi beenahaz’áanii, to define the law of the Navajo Nation. Nonetheless, the concepts continue to struggle against fears of gender discrimination.