Navajo Rules for Exclusion Proceedings
Authority to promulgate these rules is contained in Resolution CO-73-78 passed by the Navajo Nation Council on October 5, 1978. The Chief Justice issued an Order on January 11, 1982 approving these rules and they were further approved by the Judiciary Committee of the Navajo Nation Council on the same day.
RULE 1 Purposes.
These rules are adopted to implement the provisions of the Navajo Tribal Code for the exclusion of individuals who are not members of the Navajo Tribe from the Navajo Nation and to implement the provisions of Article II of the Treaty of 1868 with the United States. The code provision, which is implemented, is 17 N.T.C. § 1901, enacted by Resolution CO-73-78 (October 5, 1978). The Treaty of 1868 was ratified by the Senate of the United States as 15 Stat. 667.
RULE 2 Jurisdiction and Authority.
a. The Trial Courts of the Navajo Nation are vested with original subject matter jurisdiction over matters arising under the Treaty of 1868 under 7 N.T.C. § 253(2), and they are vested with specific subject matter and personal jurisdiction over the exclusion of nonmembers from the Navajo Nation under 17 N.T.C. § 1901 pursuant to 17 N.T.C. § 1902(a).
b. Court rules governing proceedings for the exclusion of nonmembers are promulgated pursuant to the authority contained in 17 N.T.C. § 1902(b).
RULE 3 Grounds for Exclusion.
Any person who is not an enrolled member of the Navajo Tribe, as defined in 1 N.T.C. § 501, may be excluded from the Navajo Nation upon any of the following grounds:
a. Offenses under Navajo or United States law. Any nonmember may be excluded upon a finding that such person has engaged in conduct which, if the person were a member of the Navajo Tribe, would be punishable under the laws of the Navajo Nation or the United Stated;
b. Enumerated acts. Any nonmember may be excluded upon a finding that such person has engaged in any of the following acts or conduct:
1) Una[u]thorized pro[s]pecting for petrified wood or artifacts (including archae[o]logical or historical items), mining, timber cutting, surveying or damaging or using property of the government of the Navajo Nation or any resident of the Navajo Nation; or
2) Entry into any Navajo home without the consent of its occupants; or
3) Interference with or una[u]thorized photographing of any Navajo traditional ceremony or other religious ceremony; or
4) Una[u]thorized trading or peddling; or
5) Recruiting Navajo labor without the permission of the Director of the Office of Labor; or
6) Una[u]thorized entry into an area of the Navajo Nation closed to nonmembers under the provisions of 17 N.T.C. § 1901(a) or otherwise; or
7) Removal from the Navajo Nation of any member of the Tribe under the age of 18, or under guardianship, except by court order of a Court of the Navajo Nation or in conjunction with a nonsectarian program administered by the Navajo Nation or the Bureau of Indian Affairs.
c. Repossession of property without consent of court order. Any nonmember of the Navajo Tribe or business found to be in [willful] violation of the provisions of 7 N.T.C. § 607, setting forth the lawful procedure for repossessing personal property may be subject to the following orders:
1) Any nonmember wil[l]fully violating the repossession statute may be excluded from the Navajo Nation.
2) Any business whose employees have wil[l]fully violated the repossession statute may be denied the privilege of doing business within the Navajo Nation.
d. Other provisions. Where any statute or resolution of the Navajo Nation or statute, regulation or order of the United States now or in the future provides for a criminal penalty or for the exclusion of nonmembers of the Navajo Tribe, such statute, resolution or other provision shall provide grounds for proceedings under these rules. Any statute, resolution or other implementing Article II of the Treaty of 1868 shall also provide grounds for proceedings under these rules.
RULE 4 Nature of Proceedings.
Court proceedings for the exclusion of nonmembers of the Navajo Tribe from the Navajo Nation shall be summary in nature, and the Rules of Civil Procedure as to motions; the time for making and hearing motions and all other provisions which are inconsistent with proceedings which are summary in nature shall not apply.
RULE 5 Construction of Exclusion Statutes.
All statutes for the exclusion of persons or businesses from the Navajo Nation shall be strictly construed for the reason banishment is a severe remedial device. Non-Navajo individuals living and working within the Nav[aj]o Nation are entitled to believe they are secure in their homes and work so long as they do not run afoul of one of the grounds for exclusion set forth in the Navajo Tribal Code. All exclusion actions are civil in nature.
RULE 6 Nonapplicability to Certain Individuals.
Until such time as the Navajo Tribal Council shall clarify whether it intended to enact an exclusion statute broader than the provisions of Article II of the Treaty of 1868, no officer, soldier, agent or employee of the United States Government who is specifically authorized to enter upon the Navajo Nation in discharge of duties imposed by law or the order of the President shall be subject to an action for exclusion under these rules and the statues upon which these rules are based.
RULE 7 Evidence, Standard of Proof, Admissions.
a. General rules. The general Rules of Evidence of the Navajo Tribal Courts shall be applicable in exclusion proceedings.
b. [Preponderance] of evidence. An order of exclusion may be based upon a showing of one of the grounds for exclusion recited in Rule section 3 by a preponderance of the evidence. A “preponderance of the evidence” is defined to mean evidence, which leads the court to find that the existence of a contested fact upon which one of the grounds for exclusion can be based is more probable than its non-existence. A “preponderance of the evidence” is also defined to mean evidence, which is more convincing to the court than the opposing evidence.
c. Admission. An order of the exclusion may be based upon an admission, either in open court or in a document or pleading filed with the court, that he or she committed the act in question which would be one of the grounds recited in Rule section 3.
d. Consent. A court may make an order excluding a nonmember of the Navajo Tribe upon a written consent to exclusion filed with the court.
RULE 8 Territory of Exclusion--Definition of “Navajo Nation”.
For the purpose of exclusion orders, the territory from which nonmember individuals are to be excluded shall be the territorial jurisdiction of the Navajo Tribe, including Navajo “Indian Country,” as set forth in 7 N.T.C. § 254.
RULE 9 Arrest of Nonmembers of the Navajo Tribe.
a. Any Navajo law enforcement officer, including any Navajo Police officer or Navajo Ranger, and any person authorized by the Bureau of Indian Affairs, may arrest and detain any person alleged to be in violation of 17 N.T.C. § 1901, or any criminal law of the Navajo Nation even [though] such person may not be a member of the Navajo Tribe or may not be an Indian. Such arrest powers are pursuant to the sovereign and treaty powers of the Navajo Nation to exclude nonmembers and to provide for public safety, health and welfare.
b. Any nonmember of the Navajo Tribe may be arrested upon the same standards and with the same procedures as are provided by the Navajo Tribe code and the Rules of the Navajo Tribal Courts.
c. Any nonmember arrested shall be immediately brought before a Judge of the Navajo Nation. “Immediately” shall mean no later than the first day of regular court business following arrest.
d. Pending a hearing on the interim (temporary) or permanent exclusion of a nonmember from the Navajo Nation, bond to secure the appearance of such person in the same amount as is normally required for the corresponding criminal offense for which the person was arrested may be posted with the Navajo Police or the Clerk of Court, and the person arrested may be released.
e. Upon the arrest of a non-Indian offender, the appropriate jurisdictional authority having criminal jurisdiction over such offender should be notified.
RULE 10 Disqualification of Judges.
Actions shall be brought before the District Court in the district where the alleged offense or act took place and no judge of such district may be disqualified by a motion of a party. A judge may disqualify himself where any information is brought to his or her attention showing there would be a breach of the Navajo Code of Judicial Conduct should he or she preside over the case.
RULE 11 Immediate Temporary Exclusion.
In situation where the presence of a nonmember within the Navajo Nation causes a danger to public health or safety, the nonmember may be immediately excluded from the Navajo Nation by order of a District Judge. The exclusion may only be for a period of time necessary for arrangements to be made for an exclusion hearing, which shall be no longer than fifteen days from the date of the temporary exclusion order.
RULE 12 Proceedings for Temporary Exclusion Order.
Any involuntary temporary exclusion order may be made only upon the filing of a sworn motion or petition showing specific facts which, taken as true for the purpose of an order, show grounds for exclusion under section 3 of these rules and which clearly and convincingly shows that the presence of the nonmember within the Navajo Nation causes a danger to public health or safety.
a. The sworn motion, petition or affidavits of witnesses in support of a petition or motion must give specific facts showing grounds for exclusion and danger to public health or safety, and broad conclusory statements will not provide grounds for an immediate exclusion order.
b. Any individual may be subject to an immediate exclusion order without the filing of a petition for exclusion under these rules, but such petition must be filed and served upon the nonmember no less than ten days prior to a scheduled exclusion hearing.
c. Proceedings for a temporary exclusion order may be ex parte in nature without prior notice to the nonmember, but any application for a temporary exclusion order which is ex parte must show good cause why no notice was given or can be given.
d. A nonmember who is excluded from the Navajo Nation under a temporary exclusion order may move the court to withdraw or modify the order at any time by telephone motion or a motion made by attorney. Any such motion may be ex parte, and the judge considering any telephone motion shall prepare minutes of the telephone conversation and file them the same date as the motion is made.
RULE 13 Contents of Temporary Exclusion Order.
An involuntary temporary exclusion order must contain the following information:
a. The name and title of the person petitioning for the temporary exclusion order;
b. A citation to the statue which the nonmember has allegedly violated;
c. A summary of the facts upon which the exclusion order is based;
d. A brief statement of the facts which show the person is a danger to public health or safety;
e. Whether or not a petition has been filed for exclusion and any order for the filing and service of such petition;
f. The date, time and place for the exclusion hearing;
g. A clear order to not re-enter the Navajo Nation until the time and date of the exclusion hearing; and
h. The text of 7 N.T.C. § 254 or an appended copy of the statute.
RULE 14 Immediate Exclusion by Consent.
A nonmember of the Navajo Tribe may be immediately excluded from the Navajo Nation by means of a written consent. The consent shall contain the following information:
a. A brief statement of the facts or charges against the nonmember and the citation to the statue which the nonmember has allegedly violated;
b. A statement of the nonmember’s right to a hearing before his temporary exclusion;
c. A clear waiver of rights statement;
d. Notice of the time, date and place of the exclusionary hearing;
e. Notice that the person may not re-enter the Navajo Nation until the time and [date] of the exclusion;
f. The text of 7 N.T.C. § 254 or an appended copy of the statute.
RULE 15 Petitions for Exclusion—Contents.
a. Terms for parties. All actions will be brought in the name of the Navajo Nation and it shall be referred to in all court documents as the petitioner. The nonmember against whom civil proceedings are brought under these rules shall be referred to as the respondent.
b. Time of filing. Petitions for exclusion must be filed and served upon respondents no later than ten days prior to an exclusion hearing. The petition need not be filed at the time of the presentation of a respondent before the court upon arrest.
c. Contents. All petitions must contain the following information:
1) The name and known residence of the respondent;
2) A citation to the statute which has allegedly been violated by the respondent and upon which exclusion is sought;
3) The facts of the events or acts which allegedly constitute a violation of a sta[tu]e which provides grounds for exclusion and a statement of the amount of any damages caused by the nature and respondent;
4) The names of the witnesses who will appear on behalf of the Navajo Nation in support of the petition;
5) The precise relief sought (i.e. permanent exclusion, permanent exclusion, restitution, etc.);
6) The name and title of the individual filing the petition.
d. Verification of petition. All petitions must be verified under oath by an individual responsible for the prosecution of the exclusion action. Ver[I]fications need not be made by persons having direct knowledge but may be made by persons who base their ver[I]fication upon investigation in the performance of official duties.
e. Individuals filing petitions. Petitions under this section may be made, verified and filed only by officers or officials of the Navajo Nation who are filing a petition within the scope of their office or employment. Such officials include, Navajo tribal officers, law enforcement officers, tribal attorneys, public health officials and others concerned with the enforcement of Navajo public health, safety and welfare laws.
RULE 16 Chapter and Community Resolutions.
Where the court receives a resolution from a chapter or other community organization demanding the exclusion of a nonmember individual, such resolution shall be referred to both the Office of the Prosecutor and the Direc[to]r of the Legal Services Division with a request that the matter be immediately investigated for appropriate action.
RULE 17 Citations.
Upon the filing of a petition for exclusion the Clerk of Court shall immediately bring the petition to the attention of the presiding judge of the judicial district. If the presiding district judge is satisfied that the petition complies with the requirements of section 15 of these rules and that it recites facts and grounds for exclusion, such judge shall immediately issue a citation to the named respondent to appear before the court at a time, date and place certain to respond to the petition. The citation shall indicate that the proceedings are for the purpose of excluding the respondent from the Navajo Nation and that an exclusion order may be entered if he or she fails to appear. The citation shall also direct a Navajo Police officer to make immediate service of the citation and petition upon the respondent and then make an immediate return of service.
RULE 18 Pleadings by Respondents.
Respondents need not file any pleadings in response to a petition for exclusion. However, a respondent may file a motion to dismiss the petition for any defense available at any time prior to the exclusion hearing or at the time of hearing.
RULE 19 Hearings.
a. Upon arrest. Where any nonmember is arrested under the provisions of Rule section 10, he or she shall be brought before a judge for a hearing upon the following matters:
1) Release upon bond or personal recognizance;
2) Immediate exclusion by consent or upon application;
3) The setting of an exclusion hearing prior to the filing of a petition for exclusion;
4) Exclusion upon consent.
b. Application for an immediate exclusion. Where an application for an immediate exclusion order has been made under section 13, the court shall proceed, either ex parte or upon an adversary hearing, to decide whether there is a preliminary showing of clear and convincing allegations that an excludable offense has been committed and the respondent’s presence within the Navajo Nation prior to a hearing will cause a danger to public health or safety. The hearing shall be summary in nature and no party shall be entitled to a full evidentiary hearing. The hearing shall be limited to the sufficiency of the petition and its reliability to show the court there are clear and convincing grounds for immediate exclusion.
c. The exclusion hearing. At the time of the full exclusion hearing the court will conduct such hearing as follows:
1) The court will ascertain the respondent’s correct name, residence and employment;
2) The court will ask the respondent whether he or she consents to exclusion;
3) The court will ask whether the nonmember admits the act or acts alleged in the petition;
4) If the allegations are denied and no facts are admitted which form a basis for the courts to conclude a ground for exclusion exists, the petitioner will present its case;
5) At the close of the petitioner’s case the respondent may move for dismissal for failure to state a case;
6) The respondent may present his or her defense;
7) The court will immediately make its decision and order the preparation of an appropriate judgment.
RULE 20 Hearings Civil in Nature.
Exclusion hearings are civil in nature and shall be conducted using the general principles of procedural, evidentiary and substantive law as other civil proceedings. The respond[ent] may be called as a witness and may be compelled to give testimony against himself or herself unless such testimony could be used as evidence against the respondent in an independent criminal proceeding.
RULE 21 Considerations Upon Finding of Grounds for Exclusion.
Where the court, upon a preponderance of the evidence, finds that there is a ground or grounds for the exclusion of the respondent from the Navajo Nation, it shall proceed to determine whether the respondent should be excluded from the Navajo Nation for a definite period of time or permanently. The period of time for which a respondent is excluded should take into consideration the seriousness of the respondent’s conduct and the protection of the People of the Navajo Nation. Among the factors the court should consider in making an order are:
a. The residence of the respondent including the length of residence, home ownership, lease terms and probable injury caused by immediate exclusion;
b. The employment of the respondent;
c. Contacts with family members;
d. Seriousness of the offense, including injuries to persons, property loss and the shocking nature of offense;
e. The lik[e]lihood of future misconduct by respond[en]t;
f. The respondent’s criminal record or moral history with conduct contrary to Navajo community standards;
g. The presence or absence of mental disease or defect and whether treatment for such condition is available within the Navajo Nation;
h. The probable or likely dangerousness of the respondent with regard to public health and safety;
i. The lik[e]lihood the respondent would accept and obey reasonable conditions set by the court as a condition to his or her remaining within the Navajo Nation. The court may consider hearsay evidence in determining the matters to be contained in an exclusion order.
RULE 22 Court Orders.
a. Judgment terms. The court’s judgment may be:
1) That the respondent be permanently excluded from or denied the privilege of doing business within the Navajo Nation;
2) That the respondent be excluded for a fixed period of time;
3) That where personal injury or property damage is involved, a judgment for restitution may be made whether the respondent is excluded or whether he or she is permitted to remain within the Navajo Nation upon condition of restitution;
4) That the person be allowed to remain within the Navajo Nation upon the imposition of a condition for suspending execution of an exclusion judgment or other including a bond for future behavior, restitution, abstaining from contact with persons or situations or other reasonable conditions;
5) That the judgment shall be suspended for a fixed period of time to allow the respondent to put his or her affairs in order or for the period of an imposed condition;
6) That the respondent be required to pay court and attorney fees.
b. Contents of order. Any order or judgment excluding a nonmember from the Navajo Nation must contain:
1) A statement of the conclusions to be drawn from the evidence as to the facts of the case;
2) A statement of the applicable statute or statutes which from the grounds for exclusion;
3) A statement of how or why the concluded facts constitute a violation of the applicable statute or statutes;
4) A statement of the status of the respondent as a nonmember;
5) A statement of any particular considerations found by the court as a basis for the order or judgment given;
6) An order or judgment directed to the respondent as to the period of exclusion, suspension of the order, conditions or other matters ordered, restitution, costs or other matters;
7) Where appropriate, an order to a law enforcement officer of the Navajo Nation to exclude the respondent;
8) A clear order or direction to the respondent where exclusion is ordered that he or she must not enter the Navajo Nation upon exclusion; and
9) Where exclusion is ordered the text of 7 N.T.C. § 254 or an appended copy of the statute.
RULE 23 Petitions for Modification of Order.
a. When made. A petition to modify an exclusion order or judgment may be made to the court at any time after the entry of the order or judgment.
b. Method of making. Where a respondent has been excluded from the Navajo Nation, petitions must be made by means of attorney or mail. Upon the reading of a petition a judge may make a temporary order allowing the respondent to enter the Navajo Nation for the purpose of presenting his petition to the court at a hearing.
c. Contents. All petitions must be under oath and any exhibits must be in the form of affidavits or verified documents.
d. Oral petitions. Any person who has been excluded may petition the court by means of telephone or leave to enter the Navajo Nation for short periods of time for specific purposes.
RULE 24 Priority on Court Dockets.
Actions for exclusion shall take priority over all normal matters on court dockets.
RULE 25 Appeals.
Appeals from orders excluding individuals from the Navajo Nation shall be filed within 10 days of the date of the final order or judgment and shall take prec[e]dence over all ordinary appellate cases and shall be set for hearing at the time of the filing of the appeal. The Court of Appeals may order a short briefing schedule in order to exp[edite] the appeal.
RULE 26 Forms.
The Chief Justice may adopt court forms or model forms to impl[e]ment these rules at any time.
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