______, 20____
TO WHOM IT MAY CONCERN:
Re: ______, DOB: ______-2009, C# ______
______, DOB: ______-2010, C# ______
Yá’át’ééh. Legal guardianship is established for the above-mentioned minor children through Navajo clan placements.
______, DOB: ______-1971, C# ______, is the natural maternal grandmother of the three minor children mentioned above.
______, DOB: ______-1971, C# ______, is the natural mother of ______, DOB: ______-1989, C# ______, who is the natural mother of the three minor children mentioned above.
For the maternal grandmother of the minor children, the clan relationships are established.
The binding familial ties and obligations of the Navajo clans establish court-recognized relationships which must not be ignored.
“...[I]t is not widely understood that the customs and traditions of the Navajo People are law ....” In theMatter of the Estate of: Boyd Apachee, 4 Nav. R. 178, 181 (Window Rock Dist. Ct. 1983) (emphasis in original).
Navajo courts recognize the importance of clan child familial relationships, expressed for example as follows:
This court takes judicial notice of the fact that in
Navajo culture and tradition children are not just the
children of the parents but they are children of the
clan. In particular, children are considered members
of the mother’s clan ... [but] the primary consideration
is the child’s strong relationship to members of an
extended family. Because of those strong ties, children frequently live with various members of the family
without injury.
Goldtooth v. Goldtooth, 3 Nav. R. 223, 226 (Window Rock Dist. Ct. 1982) (emphasis added).
Within the matrilineal society of the Navajo, a person’s first clan is that
person’s mother’s first clan, and the person is said to be born of or born to that clan. The person’s second clan is the person’s father’s first clan, to which the person is said to be born for that clan.
The person’s third clan is the person’s mother’s father’s first clan, also called the person’s maternal grandfather’s first clan, as the person’s mother was born for that clan. The person’s fourth clan is the person’s father’s father’s first clan, also called the person’s paternal grandfather’s first clan, as the person’s father was born for that clan. See, e.g, Austin, Raymond D., Navajo Courts and Navajo Common Law – A Tradition of Tribal Self-Governance, University of Minnesota Press (2009), at 146. However, the clan relationship may extend beyond the Four Sacred Clans if, for example, the person is adopted. See id.
As the Window Rock District Court wrote:
It must also be understood that the Navajo clan system is very
important, with a child being of the mother’s clan and “born for”
the father’s clan. The clan is important, and the family as an
economic unit is vital. The Navajo live together in family groups
which can include parents, children, grandparents, brothers and
sisters, and all the members of the family group have important
duties to each other. These duties are based on the need to
survive and upon very important religious values which command
each to support each other and the group. Some call these family
and clan members living together a “residence group,” and some
call them a “camp.”
…
The meaning of these terms is actually that groups of Navajo who
are related by blood or clan will live together for mutual protection
and the common good, and the important point is that there is a
difference in the distribution of property, depending upon whether
it is an essential piece of property for the maintenance of the camp.
There is a division of property into productive goods and non-
productive goods. Productive goods, such as sheep and land
(including land permits), are held for the benefit of the individual
and the camp, and upon death such property is held for the benefit
of those living in the camp. Nonproductive goods (jewelry, tools and equipment, nonsubsistence livestock such as horses) belong to the individual. Cash can present a special problem because it can be
treated either as productive property or nonproductive property.
Treated as productive property, cash would be held in the camp for
its economic security as a unit. Seen as nonproductive, cash would
be distributed among family members.
....
... The father’s family would recognize that his children
were “born for” their clan and would help if it was needed.
Matter of the Estate of Boyd Apachee, 4 Nav. R. at 182.
Public assistance money is treated as productive property used for the benefit of the family, particularly for the children. Therefore, as to the purposes of public assistance, it is unreasonable to require anything more than proof of clan relationship as justification for guardianship. The same is true for other public agencies such as schools and clinics.
Further, Navajo clan relationships have religious origins which are codified in Navajo statute. Begin quoted section from Title 1 of the Navajo Nation Code (N.N.C.):
§ 201. Diné Bi Beehaz’áanii Bitsé Siléí – Declaration of
the Founding of Diné Law
We, the Diné, the people of the Great Covenant, are the
image of our ancestors and we are created in connection
with all creation.
.... [Navajo language section omitted here]
The Holy People ordained,
Through songs and prayers,
That
Earth and universe embody thinking,
Water and the sacred mountains embody planning,
Air and variegated vegetation embody life,
Fire, light, and offering sites of variegated sacred stones
embody wisdom.
These are the fundamental tenets established.
Thinking is the foundation of planning.
Life is the foundation of wisdom.
Upon our creation, these were instituted within us and we
embody them.
Accordingly, we are identified by:
Our Diné name,
Our clan,
Our language,
Our life way,
Our shadow,
Our footprints.
Therefore, we are called the Holy Earth-Surface-People.
From here growth began and the journey proceeds.
Different thinking, planning, life ways, languages, beliefs,
and laws appear among us,
But the fundamental laws placed by the Holy People remain
unchanged.
Hence, as we were created and with living soul, we remain
Diné forever.
1 N.N.C. § 201 (emphasis added). The Navajo thus codified a reference to their creation story and to their spiritual and religious origins from time immemorial, as the origin of their fundamental law, and included their clans.
In Navajo law, religion is considered a possession, something which must be recognized as belonging to and of great value to a person. “The court classifies property as follows: A man is standing in an imaginary circle, and he has all his possessions – everything he calls life. They [include] ... his religion ....” Matter of the Estate of Boyd Apachee, 4 Nav. R. at 181.
Religion is a “system of faith and worship in a supreme being and usually containing a moral or ethical code.” Black’s Law Dictionary 1317 (8th Ed. 2004). Having codified the origin of their clans as taken from the Holy People in their creation story, the Navajo have shown that their clan relationships have a religious origin and are, therefore, highly regarded and central to the Navajo way of caring for their children.
Like the Amish in Wisconsin v. Yoder, , 406 U.S. 205, 215 (1972), the Navajo clan-based traditional way of life “is not merely a personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living.” Yoder, 406 U.S. at 216. And like the Ten Commandments, the “Diné Bibee Haz’áanii, the law[s] of the People, were woven into the religion of the Diné.
The headmen of Diné reinforced those law ways through yíiyá, ‘you must not do that.’” Grayson, Wendy L., et al., Diné Bibee Haz’áanii: The Law of the People, A Text on Navajo Law and Government (photo reprint), Native American Materials Development Center under a grant from the National Endowment for the Humanities (circa 1975, no publication date shown) quoted from Chapter 1, Law From the Holy People, no pages numbered. For example, “[a]n important rule ... is the customary prohibition on marriage between clan-related individuals....” Austin, supra, at 146. “To marry a clan relative is incest....” Id. at 147. Predictably, that prohibition has been codified into Navajo statutory law and is found at 9 N.N.C. § 5(D) and 5(E).
As the Navajo raise their clan children according to their beliefs, it is unreasonable for any public entity to refuse to recognize Navajo clan children in legal guardianship when clan relationships are recognized by Navajo courts. Failure to recognize the guardianship within Navajo clan relationships unduly burdens the continuing exercise of the Navajo clan system care of children by creating an obstacle in which low-income Navajo with clan children are humiliated and prejudicially injured (1) by their reliance on their beliefs and (2) by non-licensed public entity employees giving legal advice, and so illegally practicing law without a license.
Ironically, well over 30 years ago Congress recognized and articulated in the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901, et seq., both the great needs of Indian children and the government’s role in their protection, implicitly recognizing a need for assistance and access which should not be denied to dependent Navajo clan children, and their guardians should not be forced to go court.
Navajo fundamental law, with its religious origins, “provides sanctuary for the Diné life and culture, our relationship with the world beyond the sacred mountains, and the balance we maintain with the natural world.” 1 N.N.C. § 202. Recognizing the role of the Navajo clan system as to assistance for low income Navajo children will not compensate for the thousands who died on the Long Walk to, from, and at Fort Sumner, NM, in the 1860’s, but it is one honorable way to respect low income Navajo guardians today.
Navajo clan relationships are readily verifiable and based on familial relation- ships. For the reasons stated above, administrative failures to recognize Navajo clan children within legal guardianships unreasonably burden the religious rights of low income Navajo guardians and their dependent Navajo clan children.
In summary, Navajo courts have held that the placement of Navajo clan children with clan relatives, whether so placed by parents or by other clan relatives, is recognized and protected under Navajo law. SeeGoldtooth v. Goldtooth, 3 Nav. R. 223 (Window Rock Dist. Ct. 1982) and Matter of the Estate of Boyd Apache, 4 Nav. R. 178 (Window Rock Dist. Ct. 1983)).
Navajo courts have validated Navajo clan child familial relationships,
expressed for example as follows:
This court takes judicial notice of the fact that in Navajo
culture and tradition children are not just the children of
the parents but they are children of the clan. In particular,
children are considered members of the mother’s clan ...
[but] the primary consideration is the child’s strong
relationship to members of an extended family. Because of
those strong ties, children frequently live with various
members of the family without injury.
Goldtooth, 3 Nav. R. at 226 (emphasis added).
The two main cases, Matter of the Estate of Boyd Apache and Goldtooth, either separately or read together, are sufficient as judgment, decree, or other order of any court of competent jurisdiction, as constituting a blanket determination that Navajo clan placement of Navajo clan children has been judicially authorized and stands as foster care without need for additional judicial action or other placement action.
Navajo courts have jurisdiction over all Navajo agencies which may be involved in child placement. For example, “The petition for the appointment of a guardian shall be referred by the Court to a Navajo Service social worker for investigation, study and report back to the Court.” 9 N.N.C. § 802. Therefore public employees are in no position to disregard blanket orders of the Navajo courts as to place- ment of clan children. It is unreasonable to demand that a guardian of a clan child ignore Navajo judicial precedent by requiring additional placement actions merely to meet an arbitrary definition of guardianship. Such a requirement undermines and devalues the recognition and protection afforded to clan relationships under Navajo law.
Navajo clan children may be subjected to a Navajo agency verification of clan but not subjected to an additional placement proceeding which would unreasonably burden and impede the provision and function of guardianship so vital to Navajo families.
Please call ______if you have questions.
Sincerely,