The Navajo Preference in
Employment Act
Updated 7/2014
Howard L. Brown, Esq.
Shorall McGoldrick Brinkmann
attorneys • phoenix • flagstaff
702 North Beaver Street
Flagstaff, AZ 86001
928.779.1050
fax 928.779.6252
Law Review Articles
with Justice Raymond D. Austin
New Mexico Law Review, v. 40, Winter 2010
New Mexico Law Review, v. 43, Fall 2013
Summary of Today’s
Presentation
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

Background, Overview and Purposes
Who is Covered by the Act?
What are the Requirements of the Act?
Monitoring and Enforcement of the Act
Navajo Common Law
Title VII
Background:
Indian Nation Authority

Indian Nations



Independent entities with
inherent powers of selfgovernment
Tribal courts exercise civil
& criminal jurisdiction
Power to regulate & tax
members


Navajo Nation

One of the largest
federally-recognized tribe
in US


250,000 + members
25,000 square miles

Executive, Legislative, &
Judicial Branch

Integral part of our cultural,
economic & political life
Sometimes nonmembers,
too.
Background: NPEA

History





1972: NTC created ONLR and Plan of
Operation
1985: NTC adopted NPEA (15 NNC §601)
1990: NNC adopted substantive amendments
1998: NNC adopted additional amendments
Intent

Addressing unemployment and poverty

1997: 56% of population lived below the poverty
level
Overview of the NPEA



Regulates employment on the Navajo
Nation, from hiring to firing
Preferential treatment for Navajos and
spouses of Navajos
No at-will employment for most employees


1998 amendment exempted NN employees
with statutory “at the pleasure of” employment
and certain other NN employees
Monitored and enforced by ONLR and
NNLC
Purposes (15 NNC §602)
1. Provide employment opportunities for the
Navajo work force
2. Provide training for the Navajo people
3. Protect the health, safety & welfare of Navajo
workers
4. Foster economic self-sufficiency of Navajo
families
Purposes, cont’d (15 NNC
§602)
5.
Promote economic development of the Navajo
Nation
6.
Lessen Navajo Nation’s dependence on off-Rez
employment, income, goods and services
7.
Foster cooperative efforts with employers to assure
expanded employment opportunities for the Navajo
work force (#7 was added in 1990)
Employers Subject to the NPEA

Employer defined as persons, firms, entities and
the NN who engage the services of any person
for compensation

NPEA applies to “all employers doing business
within the territorial jurisdiction (or near the
boundaries) of the Navajo Nation, or engaged in
any contract with the Navajo Nation.”

Gatekeepers of employment (Largo v El Paso)

Entity that retains control over hiring by its
subcontractors
Employers Subject to the NPEA

Grant Schools?

What about School Districts and other
subdivisions of the State?

Waivers for schools?
Employees Covered by NPEA

Employee is defined as an “individual employed
by an employer”



SCOTUS in reference to ERISA’s definition of
employee: “completely circular and explains nothing”
Does not cover independent contractors
“Control Test” Plus

Etsitty v. Dine’ Bii Ass’n for Disable Citizens (Nav.
Sup. Ct. 2005)
Employees Covered by NPEA


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Navajos are entitled to preference in
employment
Spouses of Navajos are entitled to secondary
preference under certain circumstances
All employees are entitled to many of the Act’s
other protections



Just cause and written notice for adverse actions
Safe and clean working environment
Workplace free of prejudice and harassment
Requirements of the NPEA
•
Preference: Employer must give preference in
employment to Navajos and spouses of
Navajos (under certain circumstances)
•
No At Will Employment: Employer must not
take adverse action against employee without
just cause & written notice of the cause
Requirements of the NPEA
•
Non-Discriminatory Job Qualifications: Use
non-discriminatory job qualifications &
selection criteria in employment
•
Written Job Qualifications: Establish written
qualifications for each employment position
and provide a copy of the qualifications to each
applicant who expresses interest in the
position
Requirements of the NPEA,
cont’d
•
Working Environment: Maintain safe, clean
working environment free of prejudice,
intimidation & harassment
•
Affirmative Action Plan: File a written Navajo
affirmative action plan with ONLR
•
Training/AAP: Include training as part of the
affirmative action plan
Requirements of the NPEA,
cont’d
•
Employment Sources: Utilize NN employment
sources & job services for employee
recruitment and referrals (except when a
current Navajo employee is selected)
•
Advertising: Advertise & announce all job
vacancies in at least one NN newspaper and
radio station (except when a current Navajo
employee is selected)
Requirements of the NPEA,
cont’d
•
Ads/Preference Notice: Include Navajo
employment preference policy statement in job
announcements, ads & policies
•
Preference Notice: Post in a conspicuous
place a preference policy notice prepared by
ONLR
Requirements of the NPEA,
cont’d
•
Cross-cultural Programs: Educating nonNavajos on Navajo culture
•
Fringe Benefits: Ensure fringe benefits do not
discriminate against Navajo religious traditions
or cultural beliefs
•
Seniority Systems: Modify seniority systems to
comply with NPEA
Preference: Navajos

Must hire the Navajo applicant/candidate who
demonstrates the necessary qualifications of the
employment position

Irrespective of qualifications of non-Navajo applicants

Among a pool of qualified candidates, hire the
most qualified Navajo candidate

Compare other preference systems

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Points for preferred category
Among equally qualified candidates, choose the
member of the preferred category
Preference:
Non-Navajo Spouses

Entitled to secondary employment
preference
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Must provide proof of marriage to a Navajo
Must reside within territorial jurisdiction of NN
for a continuous 1-year period immediately
preceding employment consideration
Secondary Preference Only

Does not create preference over Navajo
applicants
Preference:
Reductions in Force

Navajos who demonstrate necessary
qualifications must be retained until all nonNavajos are laid-off

Navajos who are laid off have the right to
displace non-Navajos in positions for which
the Navajos are qualified

Secondary spousal preference?
Preference: Waivers for Schools

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2005 Navajo Sovereignty in Education Act
The local school board may waive the
requirements “of this section” by a formal
vote
Waiver applies to employment, retention
and promotion decisions, but only a caseby-case basis
Must make a written record of the waiver
and include in minutes of meeting

As a practical matter, the written record
should include justification
Preference: Waivers for Schools
(cont’d)


Called into question by recent case?
(Iina’ Ba’, Inc. v. Navajo Business
Regulatory (2014))
Necessary Qualifications
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Employers must establish written
necessary qualifications for each position
Employers must provide a copy of
necessary qualifications to all applicants
Qualifications must be job-related and
essential to performance of basic
responsibilities for the position, including
education, training and job-related
experience.
Necessary Qualifications, cont’d



Includes speaking/understanding Navajo
language & familiarity with Navajo culture
Non-discriminatory
Demonstrated ability to perform essential
and basic functions = satisfaction of
necessary qualifications
Necessary Qualifications:
Holding Positions Open

Employers are not required to hold
positions open until unqualified Navajos
become qualified.

Remember, the NPEA requires:


Hire the Navajo who demonstrates necessary
qualifications
Among a pool of qualified candidates, hire the
most qualified Navajo
Necessary Qualifications:
Who Decides?


The ONLR may disagree and NNLC may
overrule an employer’s determination as to
whether a certain applicant meets the
necessary qualifications and whether one
Navajo applicant is more qualified than
another
But … the employee/candidate has the
burden of showing that he/she is qualified
Necessary Qualifications:
Practice Tips
1.
2.
3.
Be sure to make the written qualifications
stringent enough so that anyone who meets
the bare minimum can be expected to perform
the job well
But, make sure the written qualifications are
not unnecessarily demanding or unrelated to
the job such that they could be considered
discriminatory
Include the qualifications in written Position
Descriptions, give a copy to everyone who
expresses an interest & require each person to
sign a form acknowledging receipt of the PD
Re-opening a position or canceling a job
posting after receiving one or more
applications from Navajo applicants may be
suspect
4.
“Any Navajo who demonstrates the necessary
qualifications for an employment position shall be
selected by the employer”
•
•
Query: If an employer receives a qualified Navajo
applicant, is the employer prohibited from reopening the position or canceling the job posting?
Recommendations
1.
2.
3.
“Open until filled”
Demanding (but non-discriminatory) written qualifications
Do not post a position unless you’re sure you need it & can
afford it
Preference & Qualifications:
Hypothetical
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Joe Yazzie – Navajo; meets, but does not exceed, the
necessary qualifications of the position.
Robert Smith - Non-Navajo; exceeds the necessary
qualifications for the position and is currently an employee of
your company.
Sharon Belone - Non-Navajo; married to a Navajo; has
resided on the Navajo Nation for two years; most qualified.
Delores Begay – Navajo; exceeds the necessary
qualifications for the position.
Ted Yellowhair – Navajo; does not meet the necessary
qualifications; says he can meet the necessary qualifications if
you just give him a chance.
Preference & Qualifications:
Hypothetical - Answer
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1) Delores Begay – Navajo; exceeds the necessary
qualifications for the position.
2) Joe Yazzie – Navajo; meets, but does not exceed, the
necessary qualifications of the position.
3) Sharon Belone - Non-Navajo; married to a Navajo; has
resided on the Navajo Nation for two years; most qualified.
4) Robert Smith - Non-Navajo; exceeds the necessary
qualifications for the position and is currently an employee of
your company.
5) Ted Yellowhair – Navajo; does not meet the necessary
qualifications; says he can meet the necessary qualifications if
you just give him a chance.
Termination and Adverse Action
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Employer cannot take ADVERSE
ACTIONS against an employee ….
without JUST CAUSE …
and WRITTEN NOTICE.
This requirement applies to ALL
employees, not just Navajos (except
employees exempted in the Act itself)
Termination & Adverse Action:
What is Adverse Action?


Adverse action is not defined in the NPEA
Statutory context (“Penalizing, disciplining,
discharging or taking any adverse action…”)


employment termination, demotion, pay reduction, etc.
Sells v. Rough Rock Community School


Adverse = “if it results in some tangible, negative effect
on the Plaintiff’s employment”
Action = an affirmative act by the employer
Termination & Adverse Action:
What is Adverse Action?

Expiration or automatic non-renewal of term
contract is not adverse action

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
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But, cannot use term contracts to avoid “just
cause”
Ex: when an employer uses “unnecessarily
short terms for the same employees in a series
of contracts”
Industry standards?
Layoffs are considered adverse action, but require
a different type of adverse action
Termination & Adverse Action:
What is Just Cause?

Employer cannot take adverse action
against an employee without just cause
and written notice of the just cause

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Case-by-case analysis
“Just cause is a broad concept that involves
unique factual circumstances”
Substantial misconduct; not minor neglect of
duty
Termination & Adverse Action:
Examples of Just Cause
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Employee used employer’s credit card for gas for nonwork related travel in her vehicle & deliberately altered a
credit card receipt
Employee’s acts included hanging up on his boss, failing
to turn in his keys & stating that he “did not have to talk to
his boss”
Employee failed to show up for work for several days & did
not notify employer
Employee had 2 occasions of sexually harassing behavior

Despite being fully aware of Company’s sexual harassment policy
& being warned that a second infraction would lead to termination
Examples of Just Cause, cont’d

Employee violated Company’s alcohol policy


Violated the policy several previous times. Employer
suspended the employee and warned that future
violations could result in termination
Security guard: Failed to wear company uniform on the
job, wear required number of pepper sprays, comply with
patrol procedures, cooperate with co-workers, etc.

Employer took corrective actions & warned that continued
misconduct could lead to termination
Examples of Just Cause, cont’d



12 days of unauthorized sick leave in a 4 month period;
refused assigned tasks; arrived late and & left early
without authorization
 Employer gave written and verbal warnings
Employee failed to call or report to a supervisor for 3
days
 Violated clear rule in employer’s personnel policies
Employee engaged in a pattern of shouting at his
subordinates
Examples of Just Cause, cont’d

Employee engaged in “persistent violations,
despite … months of meetings and emails
initiated by the employer,” as well as “extensive
in-house training.” Violations included “sending
emails containing sexually offensive matters,
making demeaning comments about other staff
and clients[,] undermining staff morale and office
decorum, being rude and unhelpful to visitors
and clients, and failing to perform assigned tasks
properly.”
Examples of Just Cause, cont’d

Pattern of misconduct or multiple infractions

Each violation “may not have been so serious” but the
“cumulative effect” constituted substantial misconduct
Repeated violations do not constitute just cause simply because
of their repetitive nature. The repeated violations must rise to
substantial misconduct.
Consider a policy that addresses repetitive misconduct

The crucial factor was that the employee “had
been conveyed the critical importance to the
employer’s business of her conforming her
Termination & Adverse Action:
The Importance of Training

Smith v. Navajo Nation Department of Head Start
and Toledo v. Bashas’ Dine Market



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“An ambiguous policy, in the absence of training to
inform employees of what that policy means, cannot
justify termination”
A terminated employee may rebut the employer’s “just
cause” by arguing the employee was not properly
trained
Employers must insure proper training on their
policies(and should document that training)
“Common sense” exception: Don’t need training to
know that some things are wrong.
Termination & Adverse Action:
Just Cause for Layoffs

Milligan v. Navajo Tribal Utility Authority



“Just cause” for layoffs does not require “substantial
misconduct”
Layoff may be made when necessary to promote
financial viability or operational efficiency
Davis v. Lukachukai Community School


To have “just cause,” employer must follow its own
layoff procedures
Also, employer must justify layoffs as necessary to
promote financial viability or operational efficiency
Termination & Adverse Action:
Just Cause for Reorganization
Lessons from Elsie Rose Albert v. Ch’ooshgai
Community School Board of Education, Inc., No
NNLC 2010-026 (NNLC October 27, 2010)
■ The School was proactive in notifying employees
of the upcoming reorganization and that they
would have to re-apply
■ The School was exceedingly fair in developing
and implementing a re-hiring process
Termination & Adverse Action:
Written Notice of Just Cause

Employer cannot take adverse action
against an employee without just cause
and written notice of the just cause
Termination & Adverse Action:
Written Notice of Just Cause




Reasons for the adverse action
Reasonably clear language and meaningful explanation
so employee can pursue legal remedies
Meaningfulness depends on whole context of
employment relationship, not just the bare language in a
vacuum, including what the employee actually knew
Must be contemporaneous with the action to avoid “ad
hoc justifications”

Can add additional reasons if (1) employer did not know the
additional reasons before issuing the original notice and (2) the
additional reasons are provided before employee pursues legal
remedies.
Termination & Adverse Action:
Practice Tips

MUST HAVE JUST CAUSE

MUST PROVIDE EMPLOYEE WITH
WRITTEN NOTICE OF JUST CAUSE
Termination & Adverse Action:
Practice Tips (cont’d)

Precautionary measures
Document details of each incident when they occur
Use progressive discipline and PIPs when appropriate
–
–
Not required, but certainly recommended
Not required to take action after each incident
Clear Policies + Training
–
Document that employees have read & understand policies
& received training on policies
Apply policies with uniformity
Termination & Adverse Action:
Practice Tips (cont’d)

Precautionary measures (cont’d)
Use k’e mechanisms: Restoring the relationship and
fixing problems through talking things out,
accountability, self-correction, withholding
punishment, etc.
DOCUMENT, DOCUMENT, DOCUMENT
Termination & Adverse Action:
Hypothetical




Arizona corporation, with office on NN
Louis Barley – Non-Navajo employee,
working on NN
Louis left work early, reported late, hungover
Can we fire Louis?
Health and Safety of
Navajo Workers

“All employers must maintain a safe and
clean working environment”

“adopt and implement work practices
which conform to occupational safety and
health standards imposed by law”
Prohibition Against Harassment

“All employers shall provide employment conditions
free of prejudice, intimidation and harassment.”

Harassment, including sexual, can be “just cause”
for termination of the harasser

NPEA does not authorize action by victim against
employer for sexual harassment by co-worker
Harassment:
Federal Standard





Conduct that is so severe and pervasive to
alter the terms of employment
Objectively and subjectively objectionable
Based on or because of the victim’s
protected status
Unwelcomed
But, Title VII is not a general civility code
Harassment:
Navajo Nation Standard




“A broad term encompassing all forms of
conduct that unreasonably interfere with
an individual’s work performance or create
an intimidating, hostile, or offensive work
environment”
Pattern of shouting at subordinates
Local standards?
Is the NPEA a general civility code?
Affirmative Action Plans

Act requires all employers to develop
Affirmative Action Plans and Timetables to
achieve the goal of employing Navajos in
all job classifications

Human Services Committee regulations
(2002)
Affirmative Action Plans

ONLR is required to assist employers with
development and implementation of AAP

Upon request, ONLR will review employer’s
AAP & either approve or disapprove it

Must be filed with the ONLR
Affirmative Action Plans:
Contents of Plan
1.
2.
3.
4.
5.
6.
Training
Policy Statement
Management-level employee to implement &
monitor Affirmative Action Plan
Goals & timelines
Employer-sponsored cross-cultural program,
including teaching Navajo culture to nonNavajos
Workforce analysis
Affirmative Action Plans:
Contents of Plan, cont’d
“In depth analysis”
7.
•
•
•
•
Composition of Navajo/Non-Navajo employees
Composition of applicant flow of Navajos/NonNavajos
Employee retention, promotion, transfer, etc.
Apprentice programs & company training
Affirmative Action Plans:
Contents of Plan, cont’d
8.
The following require corrective action
1.
2.
3.
4.
5.
6.
7.
Under-utilization of Navajo employees
Vertical movement of Navajo employees is less
than non-Navajo employees
Selection process eliminates significantly more
Navajos
Job descriptions are inaccurate in relation to actual
duties of the job
Testing has a higher adverse impact rate on
Navajos
Non-support of the AAP by staff
No formal criteria for evaluating the AAP
Advertising Vacancies

At least one newspaper and one radio
station serving the Navajo Nation (Navajo
Nation Times & KTNN)




Exception: When current Navajo employee is
selected
Navajo employment preference statement
in announcements, ads, and policies
On-site posting of ONLR Notice
Tip: Save all ads and postings
Polygraph Testing



Employers are prohibited from requiring
polygraphs of employees or applicants
Employers are prohibited from
terminating/disciplining an employee for
failing or refusing a test
By NPEA, provision does not apply to
federal or state employees
Breast Feeding


Navajo Nation Healthy Start Act of 2008
Not codified as part of the NPEA, but
creates new rights for certain employees
on the Navajo Nation, it incorporates
certain definitions from the NPEA, and it is
enforced by the ONLR and the NNLC
Breast Feeding, cont’d

Employers doing business within Navajo
Nation, or engaged in any contract with
Navajo Nation, shall provide to each
working mother opportunities to engage in
breast feeding of their infant child or to use
of a breast pump at the workplace
Breast Feeding, cont’d


Employer must provide (1) “a clean and private area
or other enclosure near the employee’s workspace,
and not a bathroom, to engage in breast-feeding or
use of a breast pump” and (2) “a sufficient number
of unpaid and flexible breaks within the course of
the workday to allow a working mother to engage in
breast-feeding or use of a breast-pump.”
Employers are required to file with the ONLR a
written plan to provide working mothers with such
opportunities
Breast Feeding, cont’d



No exceptions/defenses for “undue burden”
Failure to comply =
 adverse action,
 failure to provide a safe and clean working
environment,
 failure to provide employment free of
prejudice, intimidation and harassment
ONLR monitors/enforces; NNLC conducts
hearings
Monitoring & Enforcement:
The ONLR

Office of Navajo Labor Relations (ONLR)



Monitors compliance and enforces the NPEA
Person may file charges with the ONLR (Individual
Charge) or ONLR may file charges on its own
initiative (ONLR Charge)
All Charges must be filed within 1 year after the
accrual of the claim



Accrual: the date of the alleged violation, or when the
employee reasonably should have known of the violation
May be tolled for special circumstances
Employee’s participation in employer’s internal grievance
process does not change the time
Monitoring & Enforcement:
The ONLR, cont’d

ONLR must notify employer within 20 days
after the Charge is filed

ONLR is required to investigate whether there
is probable cause


Subpoenas, interviews, interrogatories
Generally, ONLR will issue a letter describing the
Charge & will request responses to inquiries &
copies of documents
Monitoring & Enforcement:
The ONLR, cont’d
Within 180 days after Charge is filed, ONLR
must:


Dismiss for lack of probable cause, petitioner’s
failure to file timely, petitioner’s failure to cooperate
with ONLR, or petitioner’s failure to accept an
approved settlement (and issue Right to Sue) or

Issue a probable cause determination, triggering
conciliation, and issuance of Right to Sue if
conciliation fails or

Certify it will be unable to complete the steps in 180
days and therefore issue a Right to Sue
Monitoring & Enforcement:
The NNLC

After receiving Right to Sue or expiration of
180 days after Charge was filed:



Employee may file written complaint with the
Navajo Nation Labor Commission (NNLC)
Complaint must be filed within 360 days after
charge was filed with ONLR
Allegations asserted in ONLR Charge define the
scope of the allegations in the NNLC Complaint
Monitoring & Enforcement:
The NNLC, cont’d


NNLC is required to schedule a hearing within
60 days of the filing of complaint
Parties have the right to:




Legal counsel
Present witnesses
Cross-examine witnesses
Employer has the burden of proof to show by a
preponderance of the evidence that it complied
with the NPEA. Manygoats v. Cameron Trading
Post.
Remedies & Relief

Remedial relief, including directed hiring,
reinstatement, displacement of non-Navajo
employees, back-pay (up to two years prior to
filing of Charge), front-pay, injunctive relief,
action to cure violation

If NNLC finds the violation intentional, it may
impose civil fines as a remedial order; cannot be
punitive and must be proportionate to the other
relief granted

Attorneys fees if employer’s position was not
substantially justified
Remedies & Relief, cont’d


Emotional distress is not a separate claim under
the NPEA
Some types of emotional distress damages may
be permitted if the NPEA violation caused the
distress, damages are necessary to cure the
violation (or are remedial in nature), and the
amount of damages is reasonably tied to efforts
to treat the distress


“Remedial, with a goal to cure” the NPEA violation
No tort-like damages; must be remedial
Remedies & Relief, cont’d

Bee K’endzisdlii’

Requires the NNLC to hold the Employer and
the Employee accountable for their actions
when crafting remedies to restore the
relationship, including Peacemaking (if both
parties are willing)
Enforcement & Appeals of
NNLC Decisions


NNLC’s decisions may be enforced bythe
District Courts of the Navajo Nation
Appeals


Any party can appeal a NNLC decision
directly to the Navajo Nation Supreme Court
Must file a written appeal within 10 days after
receipt of NNLC’s decision
Navajo Common Law (NCL)
(credit: Justice Raymond Austin)


NCL - Values, customs & traditions found in
Navajo culture, spirituality, language & sense
of place (includes Fundamental Laws)
Duty to Use NCL - 7 NNC sec. 204(A) & (B):



Use NCL to interpret Navajo statutory laws and
regulations;
Apply NCL whenever Navajo statutes or
regulations are silent on matters in dispute;
Knowledgeable Navajos can advise Court
[NNLC, too] on NCL.


Rule on adoption of bilagaana law: Non-Navajo
law must be compatible with fundamental Navajo
values. Goldtooth, 8 Nav. R. 682, 691 (2005).
Fundamental Navajo postulates

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Navajo dispute resolution model: hozho  anahooti 
hozho (harmony  problem  harmony). Goals:
restore parties, clan, community etc. to hozho;
mend/heal relationships
Hozho: Gloss as a state/condition where everything is
in its proper place and functioning in harmonious
relationship to everything else. Witherspoon, Navajo
Kinship & Marriage (1975). Hozho is not blackletter law
that applies to a legal issue.
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Fundamental Navajo postulates cont. ...
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K’e: Gloss as unity through positive values
such as respect, kindness, cooperation,
friendliness, reciprocal relations & love. K’e is
not blackletter law; it guides relationships &
interactions in Navajo society so people can
live in hozho.
K’ei: Navajo clan system
Nalyeeh: Traditional remedy (uses apology,
forgiveness & restitution/compensation) to
heal & restore relationships & to make injured
party whole.
NCL in NPEA cases
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“Words are Sacred” (WAS) Principle:
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Navajo belief: “Words are powerful” so they can be
used to heal, destroy, persuade, etc.
WAS principle is tool naat’aanii uses to lead. In
Kesoli v. Anderson Sec. Agcy, 8 Nav. R. 724 (2005),
a supervisor (cast as naat’aanii) violated “WAS”
principle when he shouted at subordinates
(harassment). Harassment is “just cause” for his
termination. A naat’aanii is held to high standards in
traditional Navajo society which fits with hazho’ogo
(responsible use of freedoms) principle.
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“WAS” principle cont....
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WAS used to construe contract (lease). ONLR, ex rel Bailon, 8
Nav. R. 501 (2004) – New Mex explicitly agreed to give Navajos
job preference in 1st provision of lease. Using 2nd general
provision, NM argues it would violate state & fed laws prohibiting
racial/national origin discrimination if it gave Navajos job
preference. Court uses WAS principle to hold that 1st provision,
as the explicit provision, controls the second (general provision).
According to WAS principle, “a party cannot give their word in
one section [of lease] and take it back in the next.” Id. at 506.
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WAS used to enforce employment contract. In Smith v. NN
Dept. of Head Start, 8 Nav. R. 709 (2005), worker was fired for
violating personnel manual. Supreme Court uses WAS principle
to find “just cause” to fire worker: Manual is contract between
worker and employer w/expectations that both will follow it to
have hozho in workplace. Words in contract are sacred and
never frivolous & promises made must be fulfilled. Id. at 714-15.
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WAS cont. ...
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WAS principle used to find binding contract.
In Goldtooth v. NTA Comty Sch, 8 Nav. R.
628 (2005), school’s exec director, w/o
school board approval, offered employment
contract to worker who accepted. School
board later invalidated contract. Court found
valid contract because exec director had
apparent authority to bind school board.
Court used WAS and naat’aanii principles as
rationale: Exec director was a naat’aanii
w/authority to offer employment contracts
and, as such, his words carried great weight
within the community.
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Nalyeeh in NPEA cases:
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Tso v. NHA, No. SC-CV-20-06 (Dec. 6, 2007):
Judgment entered v. employer who claims it cannot
be forced to use federal $$ to pay judgment. Court
holds that NHA must pay judgment using non-federal
funds because “there are central principles of … the
Navajo Life Way … that affirmatively require the NHA
to satisfy the judgment. The important thing is that
the NHA have respect for others and for decisions
made by the Labor Commission, the lower court and
this Court. Dine’ bi’o oo’ iil recognizes our
relationships to each other and the responsibilities
that those relationships create.”
Although Court has not expressly said so, attorney’s
fees and costs are likely recoverable under nalyeeh
principle: See e.g. Goldtooth v. NTA Comty Sch., No.
SC-CV-12-06 (April 16, 2001).
NPEA & Title VII of the
Civil Rights Act
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NPEA provides for “tribal preference” (as
opposed to “Indian preference”)
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Title VII
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Prohibits discrimination on basis of race, color,
religion, sex, or national origin
Does not apply to Indian Nations (therefore, Indian
Nation can apply tribal preference without issue)
Contains an exception for employers located “on or
near” Indian Reservations, who may give “Indian
preference” pursuant to publicly announced
employment practice
NPEA & Title VII of the
Civil Rights Act (cont’d)
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Issue: Can employers on or near the Navajo
Nation grant Navajo preference without violating
Title VII?
Much litigation, including by the EEOC
Political classification vs. national origin
classification
In flux, but currently, I believe that Navajo
preference is permitted
The Navajo Preference in
Employment Act
Howard L. Brown, Esq.
Shorall McGoldrick Brinkmann
attorneys • phoenix • flagstaff
702 North Beaver Street
Flagstaff, AZ 86001
928.779.1050
fax 928.779.6252