RESOURCES · PLAIN LANGUAGE
The cases that decided things
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Each case below carries its own verification level. Where we have not read the opinion, we say so. How we verify →
A handful of court decisions shape what the Navajo Nation can and cannot do. Most people have never heard of them. Here is what each one means, in ordinary words.
A hard truth about reading these
The Navajo Nation Supreme Court’s opinions are published in bound Navajo Reporter volumes, sold at the Diné College Book Store for $45 to $100 each. In one quarter, the Judicial Branch recorded six sales.
Federal Supreme Court opinions are free online. Navajo ones are not. That is why the summaries below of Navajo cases are marked C — we have read what others quote, not the opinions themselves.
Federal cases — what the United States decided about tribes
Oliphant v. Suquamish Indian Tribe (1978) A
In plain words: A tribal court cannot put a non-Indian on trial for a crime.
What the Court said: tribal courts “do not have inherent criminal jurisdiction to try and to punish non-Indians, and hence may not assume such jurisdiction unless specifically authorized to do so by Congress.”
Why it matters here: a non-Navajo doctor, contractor, or company cannot be criminally prosecuted by the Navajo Nation. Only the federal government can.
What it did not decide: whether the Nation may regulate them. That is a different question — see Montana.
Montana v. United States (1981) A
In plain words: A tribe generally cannot regulate non-members — except in two situations.
Exception one: a tribe may regulate, “through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.”
Exception two: a tribe keeps authority over nonmember conduct that “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”
Why it matters here: a non-Navajo physician under contract at a facility on the Navajo Nation has a consensual commercial relationship with a tribal entity. Licensing is named in the exception. CO-50-14 granted no such power.
Worcester v. Georgia (1832) C
In plain words: Tribal nations are distinct political communities. State law does not simply reach into them.
Why it matters here: the proposed constitution cites this case for the Nation’s right to exclude non-members.
Navajo Nation cases — what our own Court decided
Shirley v. Morgan (2010) C
In plain words: The Council could not abolish the office that was supposed to finish the government. The Court ordered it restored.
What happened: On July 16, 2010, the Navajo Nation Supreme Court held that the Council’s dissolution of the Commission on Government Development “cannot stand.” It struck the codified sections at 2 N.N.C. §§ 970–978 and ordered the Commission restored to its original 1989 terms — “to finally fulfill their purpose of enabling the People to participate in the development of our Navajo Nation.”
Why it matters here: the office now proposing the November constitution is the office the Court ordered restored, sixteen years ago, to finish what 1989 started.
Also decided (June 2, 2010): the Fundamental Law of the Navajo Nation may not be redefined to include man-made law. Diné bi beenahaz’áanii are immutable.
Contested right now: President Nygren’s attorneys invoke this case against removal legislation. The Council’s attorneys say the Court never addressed the removal statute at 11 N.N.C. § 240(A). This site takes no position.
In re Two Initiative Petitions Filed by Shirley (2008) C
In plain words: The power to govern the Navajo Nation always belongs to the People.
Why it matters here: this is the legal foundation for initiative, referendum, and recall. The Council does not grant those powers. The People hold them.
Put together, what do they mean?
Four sentences
- The Nation cannot criminally prosecute a non-Navajo. Only Congress can change that. (Oliphant)
- But it may be able to license one who contracts with it. That power was never granted to the Health Department. (Montana + CO-50-14)
- The Council could not abolish the reform office. The Court ordered it restored in 2010. (Shirley v. Morgan)
- The power to govern belongs to the People. Initiative, referendum, and recall are theirs, not the Council’s to give. (In re Two Initiative Petitions)
Related: The Seams · Who watches the money? · The Root Problem · Official sources · How we verify