Hierarchy of Laws
Understanding the Legal Landscape
In most jurisdictions, the application of law follows a single, predictable flow: a Constitution, followed by statutes, regulations, and court decisions. On the Navajo Nation, this hierarchy is far more complex due to the dual jurisdiction over the land base and the heavy influence of federal contractual obligations. Federal interests center on land-based assets, with general welfare service obligations imposed as a fiduciary duty under treaty-based trust obligation principles established over time across all treaty tribes since the 1830s. The U.S. decides the extent of its trust responsibility so long as fiduciary expectations imposed by the U.S. courts are met. The U.S. Supreme Court has been narrowing those “fiduciary expectations” over the last 20 years. See e.g., Arizona v. Navajo Nation (2023), which held that the Navajo Treaty of 1868 did not require the United States to take affirmative steps to secure water and imposed no ‘affirmative duty’ on the United States to ensure the land is actually livable.
On the ground, this creates a “checkerboard” of authority where federal land-use regulations, conforming tribal enactments, and Diné Fundamental Law often operate in tension. The experience is not of federal/tribal partnered government, but of a federal trustee land, mineral and water manager with the tribe able to “govern” themselves in matters the trustee has no interest. In reality, the tribe’s ability to address matters outside the trust responsibility is severely limited by conditions of funding under federal contractual obligations.
For nearly a century after the Navajo Treaty of 1868, the federal government added to, or had land withdrawn from the reservation land base, practically at will, imposing new policies and laws without planning continuum. Originally boundaried at 5,200 sq miles in 1868 and now spanning 27,000 sq. miles or the size of West Virginia or Portugal, the combined land bases of the Navajo Nation are like a quilt of land use management regulations and jurisdictions that cannot be understood without tracing each land base to its formation purpose and to the federal Indian and public land policies of its time. Please visit our reference page on Navajo Nation Land Base Formation.
While the unique status of the land base is the primary driver of legal complexity on the Navajo Nation, the Navajo Nation is not a standard government but a “trustee” administration having to navigate federal law guardrails and federal contractual obligations in order to address its own living culture and intergenerationally support its own people. The contractual obligations spring from the 1975 Indian Self-Determination and Education Assistance Act (ISDEAA) or PL 93-638, which ended the federal policy of termination and commenced incremental phases towards self-governance, numbered by Title. E.g. Title I of PL 93-638 allowed tribes to enter“638 contracts” with the federal government to be delegated federal trust responsibility duties on a program-by-program basis. Title II and III funded demonstration “compacts” providing pilot tribes with increased self-governance scope. Title IV extended the ability to “compact” to all tribes.
In 1976, the Navajo Nation became one of the first 638 contract tribes, using such funds for judicial, education, social services, and tribal govt support. In 1979, Navajo Nation-BIA 638 contracts extended to health, police, and water resource management. Today, 638 contracts now fund nearly all programs across all tribal government, as much as $1 billion. Amounts aggregated across all contracts are not reported. After proven financial stability of 3 years, tribes assuming program-by-program federal functions under Title I should transition to integrated, cultural value-based government under Title IV Compacts. Yet 46 years later, nearly all Navajo Nation governmental programs continue to depend on 638 contracts.
Separate Laws for Government and People
In the typical American system, local laws yield to state and federal statutes. In a healthy government in a healthy democracy, authority flows from the People ⇒ Legislature ⇒ Law.
On the Navajo Nation, tribal government operates and answers primarily to contractual “law”–invariably BIA Handbooks–due to the Tribe’s prolonged status as a PL 93-638 ISDEAA Title I contractor. Because millions of dollars in tribal programming are governed by these federal contracts, BIA handbooks and the trust responsibilities incorporated into each contract have become the de facto primary rules for governance. These contractual requirements often supersede the Navajo Nation’s own tribal laws in tribal governmental daily practice. Authority flows from BIA Funding ⇒ 638 Contract Terms ⇒ Administrative Compliance. This bypasses both the People and the Code, leaving the public “bewildered” by which rules are actually being enforced.
Through PL 93-638 Title I contracts (“638” contracts), the Navajo Nation assumes the BIA’s role in managing trust responsibility duties. However, this means the Tribe must follow BIA Operating Handbooks as if it were a federal agency. In this system, the Tribe often finds itself acting more like a federal contractor than a sovereign government, leading to a landscape where federal administrative rules carry more weight than tribal statutes.
“638” Contracts were designed as a temporary, transitional bridge—a way for the Navajo Nation to learn the administrative ropes of federal programs while moving toward true self-governance. The ultimate goal, as outlined in ISDEAA Title IV Compacting, is for the Nation to move beyond being a mere “federal contractor” and instead operate as a full sovereign. Under Title IV compacting, the Tribe would receive funding in a single block, allowing it to redesign programs and reallocate funds according to Diné priorities and Diné Fundamental Law, rather than being tethered to rigid BIA handbooks.
However, over the last fifty years, this “transitional bridge” has become a permanent trap. By remaining a 638 contractor since 1976, the Navajo Nation has entered a state of prolonged administrative dependency. Instead of evolving into a self-governing entity that writes its own rules, the tribal government has become a massive service provider for the BIA. This reliance on program-by-program contracts—each tied to millions of dollars and strict federal oversight—has effectively institutionalized federal control. What was meant to be a vehicle for self-determination has instead created an “administrative dysfunction” where tribal personnel prioritize federal audit compliance over the needs and traditional laws of the Diné people, stalling the dream of a far more sovereign Navajo government.
The primacy of 638 Contract “laws” is apparent from the tribe’s treatment of its own enacted laws and caselaw. Despite new tribal laws being enacted at quarterly sessions of the Navajo Nation Council, many with the express directive for codification into Titles 1 – 26 of the Navajo Nation Code, the Navajo Nation has not formally codified tribal laws since 2009. This leaves a vast amount of “uncodified law” that is difficult, if not impossible, for lawyers, judges, and the public to access.
The result is a “transparency gap.” While the Diné people look to the Navajo Nation Code, the reality is that much of the tribe’s modern law remains uncodified or exists within federal contract requirements. Furthermore, while Diné Fundamental Law is intended to be the foundational law, it is frequently sidelined by both federal and tribal entities in favor of “638” contractual compliance and administrative convenience, nearly always justified by lack of knowledge of itsmeaning. Nearly two decades without formal codification of laws enacted by the Navajo Nation Council has also created a nearly unbridgeable gap between the law as it is practiced and the law as the people understand it.
In practice, the legal landscape on the Navajo Nation since 1976 is dominated by the “638 contract” Federal-Contractual Overlay. Because tribal programs are funded through these contracts, the BIA Operating Handbooks and federal trust regulations often function as the primary law on the ground.
This dual system of federal contracts and tribal sovereignty creates significant barriers to transparency and the rule of law:
De facto Hierarchy of Laws
The below funnel of authorities, or hierarchy of laws, shows how the intended hierarchy of sovereign tribal law is effectively inverted by the administrative requirements of federal funding. In this “inverted” system, the contractual obligations to the BIA often sit at the top of the decision-making pyramid, while the Navajo Nation Code and Diné Fundamental Law are relegated to the bottom.
The Treaty of 1850 and the Navajo Treaty of 1868
Two treaties are considered sacred documents containing promises that must be fulfilled. The 1850 Treaty promised U.S. government protection and obligation “to secure the permanent prosperity and happiness” of the Navajo people in exchange for their subjugation. The 1868 Treaty ended the people’s captivity at Fort Sumner (Hwéeldi) and established the first reservation boundaries. Both documents are the basis for the federal trust responsibility. Note: The U.S. Constitution (Article II, Section 2, Clause 2) provides that treaties are equal to Federal laws and are binding on states as the supreme law of the land.
Federal Law Guardrails
While the Navajo Nation is sovereign, it operates within a “double-walled” container: the Treaty/Trust relationship on one side and Federal Statutory Law on the other. Federal courts and agencies generally view those federal laws as “guardrails” that the Tribe cannot bypass. These guardrails are the legal boundaries within which the Navajo Nation must operate to maintain its 638 contracting status and to protect its actions from being overturned in federal court. For a detailed list of the specific federal acts that govern our land-use decisions, visit our Federal Statutes Reference Page.
Dominance of 638 Contract Law
In daily operations, Federal (BIA) handbooks incorporated into program-by-program 638 contracts supersede tribal law. The contractual duties are limited to federal trust responsibility functions as interpreted by the U.S. Government and that flow from the Navajo Treaties. Tribal personnel frequently prioritize contractual compliance to ensure funding stability, effectively treating federal administrative manuals as the primary law of the land.
Codified & Uncodified Navajo Nation Law
The Navajo Nation has not formally codified its laws in over 15 years. This has resulted in a massive body of “uncodified law”—resolutions and amendments that are scattered across decades of Council records—making it nearly impossible for the public, lawyers, or judges to know the current state of the law.
Publicly Inaccessible Navajo Nation Caselaw
Finding judicial precedent is hampered by a significant “digital gap.” While recent opinions are online, historic cases rely on the Navajo Nation Reporter, which is often unavailable digitally. Furthermore, Volume 8 of the Reporter is notoriously “raw”; it lacks the headnotes and summaries found in earlier volumes, forcing practitioners to parse full texts to find a holding. This lack of indexed case law is a direct result of funding being diverted to immediate operations rather than the essential work of legal publishing.
Marginalized Tribal Sovereignty
While Diné Fundamental Law is the spiritual and legal heart of the Nation, it is frequently bypassed. Both Fundamental Law and the Navajo Nation Code are often sidelined by federal and tribal government personnel due to the pressing need to comply with 638 contract terms, and a continued lack of understanding of what Diné Fundamental Law means in terms of government action.
Inherent Sovereign Law
In principle, the legal framework of the Navajo Nation is built upon a foundation of traditional wisdom and modern self-determination. This is the “Law of the Land” as the Diné people understand it.
The goal of a sovereign hierarchy is to ensure that the Diné people are governed by their own values. However, the present weight of federal contracts for the tribe to perform trust responsibility functions pulls authority away from the People and toward tribal government offices performing federal administrative duties.
The legal authority of the Navajo Nation is inherent; it originates from the relationship between the Diné people and the Holy People. In 2002, the Navajo Nation Council took the landmark step of codifying these principles into written law via enactment of Resolution CN-69-02. However, this act created a unique set of complexities by attempting to translate a fluid oral tradition into a rigid, Western-style statutory framework.
To navigate the hierarchy of laws on the Nation, one must distinguish between the Source of the law and the Statutory Structure created to house it.
Diné bi beehaz’áanii bitse siléí: the immutable law
1 NNC § 201 is Diné bi beehaz’áanii bitse siléí, the only section in the codified Diné Fundamental Law that has its source in the Life Way verbally passed down. Written in the declarative language of Diné language and culture, Diné bi beehaz’áanii bitse siléí is presented in Diné bizaad with an English translation. It recognizes the irreducible identity of the Diné as a sovereign people who exist by their own right. Unlike the sections that follow, Section 201 is a statement of being—a declaration of a sovereignty that no external government can grant or take away. Many legal leaders, including those who drafted the 2002 Act, view this as the most essential section of the code. It is immutable, declared the foundation of all laws.
The immutable nature of the Fundamental Law is stated as a finding of the Navajo Nation Council in the preamble of CN-69-02 and affirmed in 2010 by the Navajo Nation Supreme Court in Office of the President v. the Navajo Nation Council, or Shirley v. Morgan SC-CV-02-10 (Nav. Sup. Ct. June 2, 2010). Law practitioners who are unfamiliar with Diné culture may find this section impenetrable and may even fail to understand how this can be handled as law due to the absence of imperative language. It is frequently referenced in governmental proceedings.
Waiting for a Tribal Vision
Navajo Nation land use encompasses federal and tribal jurisdictions, and also numerous federal and tribal regulations that are dispersed, unavailable online, or otherwise too complicated to be readily accessed even by government workers and lawyers.
Navajo Nation tribal members assume that the federal and tribal governments must have a regulatory scheme in place that is internally coherent and which makes practical sense to those in charge. People are not aware that federal land use policies for tribal and public lands have greatly evolved over time, with laws playing catch-up with policies and patchworked across time. While regulations for management of federal public lands have caught up with multi-use sustainable yield integrated land management policy, federal regulations for management of federal tribal lands have not, and continue to reflect an out-dated single-use non-integrated policy. On the Navajo Nation, this will continue until the Navajo Nation is able to envision a Tribal Vision for integrated land use.
Urgency of Knowing the Laws
When I think about our history, the treatment by governments and the laws being used, I know the federal government, and the Navajo government, convey that the Diné people have their land and the governments are there to protect that land for them. It is implied that the Navajo people should be grateful that we are allowed to remain on the land. However, the governmental decisions on the use of our land do not spring from the fundamental laws that we, as a people, must follow if we are to survive. The unilateral mandates that continue to issue from these governments are piecemeal. They do not come from prioritizing our way of life. One after the other, both federal and tribal laws address immediate compliance with other mandates or shorted-sighted solutions. In many ways, the ad hoc laws shown by the chronology of how our land base has developed have destroyed Navajo life, and continue to destroy Navajo life.
There is a problem at the community level, at the family level, at the individual level, on the regulation of land use, and the problem is getting worse. We need everyone to know the laws, history and traditional practices that affect our relationship with land. We need, especially, our lawmakers, to take a hard look at the problem and to listen to the people, and we need the people to fully understand the way the laws have developed and continue to develop, that have never involved informed decision makers at every level, never involved wholistic thinking, and never been based on impacts on the Diné way of life.
Herb Yazzie
Black Mesa, AZ
Retired Chief Justice, Navajo Nation Supreme Court 2005-2015
Chair, Board of Directors, Indian Country Grassroots Support
August 9, 2021