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Navajo Supreme Court Says Navajo Housing Authority Must Satisfy Judgment January 10, 2008

Posted by rezjudicata in Navajo Supreme Court, Tribal Courts.
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Tso v. Navajo Housing Authority, No. SC-CV-20-06 (Nav. Sup. Ct. Dec. 28, 2007)

Issue(s): Navajo Bill of Rights > Retroactive Legislation >> Ex Post Facto Laws; Federal Programs > Satisfaction of Judgments; Navajo Law > Diné bi’ ó’ool’iil

The Navajo Bill of Rights prohibits ex post facto legislation that strips individuals of their fundamental rights. After Tso won a judgment against the Navajo Housing Authority, the Navajo Council amended the code to expressly extend immunity to the Navajo Housing Authority and exempt it from execution. When Tso sought to enforce the judgment, the Housing Authority claimed the amended legislation prevented enforcement. As applied, is the amended legislation a prohibited ex post facto law? If so, do federal guidelines nevertheless prevent the Housing Authority from satisfying the judgment from federal funds?

By a 2-1 vote, the Navajo Supreme Court said yes to both questions. The Court began by making an apparent distinction between basic retroactive legislation and ex post facto laws that affect fundamental individual rights. The Court then listed specific types of ex post facto laws. While Navajo law permits legislation intended to correct mistakes, respond to emergencies, or implement a new beneficial statute (even when affecting fundamental rights), the result may be different when the Council responds directly to a Court decision. Under these circumstances, if the new law prevents an individual from exercising rights won in court, the law is prohibited as ex post facto legislation. By altering the legal consequences of a past decision, the Council attempted to stop Tso from satisfying his judgment against the Housing Authority. Because the judgment was a property right, the Court held that the legislation was an impermissible ex post facto law.

As a federally-funded agency, however, the Housing Authority must comply with restrictions the government places on federal grants. A federal “circular” prohibited the Housing Authority from using federal money to satisfy civil judgments. The Court did not question the viability of the circular and held that federal funds must not be used to pay Tso. But, the Court explained that this did not relieve the Housing Authority from responsibility to Tso. Indeed, principles of Diné bi’ ó’ool’iil (the Navajo Life Way) require the Housing Authority to satisfy the judgment. Thus, the Housing Authority must use any non-federal income to compensate Tso. The Court reinforced the primacy of Diné bi’ ó’ool’iil  suggesting that, even if the Housing Authority’s only income is federal dollars, it may have to raise money to pay Tso.

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