Navajo Nation 110 Nonetheless, finding that Executive officers had acted outside the scope of their authority in Dennison, suit was permitted. Dennison was followed by Keeswood v. 111 Navajo Tribe, where the Court "strongly urge[d] the Navajo Tribal Council to examine the trend in American law and take some kind of affirmative action on the issue of sovereign immunity."112 Again, while holding that the Tribe could not be sued without its consent, the Court affirmed the District Court's holding that individuals employed by the Tribe could be sued if they "exceeded their lawful 114 authority. "113 The Land v. Dollar exception to the sovereign 115 immunity doctrine was also noted in Davis v. Navajo Tribe, and 116 discussed in Johnson v. Navajo Nation. The Navajo Tribal Council addressed the issue comprehensively in 1980 in the Navajo Sovereign 110Id. at 105 (1974). 1112 Navajo Rptr. 46 (1979). 112Id. at 55. 113Id. at 56. 114330 U.S. 731 (1947). 1151 1 Navajo Rptr. 379, 381 (Crownpoint D. Ct. 1978). 1165 Navajo Rptr. 192, 195-96 (1987). "Indeed, Section 253 [Navajo Trib. Code tit. 7, § 253] would give the district courts jurisdiction over ultra vires actions of tribal officials without running afoul of the sovereign immunity doctrine." Id. at 196. Accord, TBI Contractors, Inc. v. Navajo Tribe, 6 Navajo Rptr. 116 (1988) ("Sovereign immunity does not extend to protect tribal officials who act outside the law."). TBI is most significant in its discussion of the relationship of tribal sovereign immunity with economic development. See id. at 126-27. 117 Immunity Act. The 1980 Sovereign Immunity Act was amended in 1986.118 The above discussion suggests strongly that each transaction with the Navajo Nation or its enterprises must be considered sui generis. Further, secure financing of leasehold improvements on tribal trust land will depend on the terms of the tribal lease, and a prudent lender should, if necessary, seek lease modifications to assure that a foreclosure action would ultimately protect its interests in the debtor's assets. Repossession of personal property in Navajo Indian country is governed by Navajo Trib. Code tit. 7, §§ 607-610, reproduced below: § 607. Repossession of personal property The personal property of Navajo Indians shall not be taken from land subject to the jurisdiction of the (1) Written consent to remove the property from (2) Where the Navajo refuses to sign said written consent to permit removal of the property from land subject to the jurisdiction of the Navajo Tribe, the property shall be removed only by order of a Tribal Court of the Navajo Tribe in an appropriate legal proceeding. 117Navajo Trib. Code tit. 7, § 851, et seq. 118See Johnson v. Navajo Nation, 5 Navajo Rptr. 195, 200 n.4 (1987). § 608. Violations--Penalty (a) Any nonmember of the Navajo Tribe, except persons authorized by Federal law to be present on Tribal land, found to be in wilful violation of 7 N.T.C. § 607 may be excluded from land subject to the jurisdiction of the Navajo Tribe in accordance with procedure set forth in 17 N.T.C. §§ 1903-1906. (b) Any business whose employees are found to be in wilful violation of 7 N.T.C. § 607 may be denied the privilege of doing business on land subject to the jurisdiction of the Navajo Tribe. N.T.C. (၁) Any Indian who violates any provision of 7 § 607 shall be guilty of a crime, and upon conviction shall be punished by a fine of not more than $100. § 609. Civil Liability Any person who violates 7 N.T.C. § 607 and any business whose employee violates such section is deemed to have breached the peace of the lands under the jurisdiction of the Navajo Tribe, and shall be civilly liable to the purchaser for any loss caused by the failure to comply with 7 N.T.C. §§ 607-609. If the personal property repossessed is consumer goods (to wit: goods used or bought for use primarily for personal, family or household purposes), the purchaser has the right to recover in any event an amount not less than the credit service charge plus 10% of the principal amount of the debt or the time price differential plus 10% of the cash price. performance Purchaser means the person who owes payment or other of an obligation secured by personal property, whether or not the purchaser owns or has rights in the personal property. § 610. Agencies of United States The provisions of 7 N.T.C. §§ 607-609 shall not apply to legally recognized agencies of the United States Government. As the statute 119 prohibited. Violations of these provisions subject the creditor to civil liability, as set out in § 609, and may subject the creditors to exclusion from the Navajo Nation under § 608. 120 The Navajo statute is similar to one enacted by the Wisconsin legislature. It appears that the prohibition of unconsented-to self-help repossessions under the Wisconsin law has not had any significant effect on credit practices in that state. 121 The authority of Navajo law on repossessions within the Navajo Nation is clear, and the repossession laws are accorded full 122 123 faith and credit by the New Mexico courts, and comity by the 124 Arizona courts. of interest to creditors doing business with the Tribe itself is Tribal Council resolution CJA-8-78 (Jan. 24, 1978) which affirms that the protections afforded by Navajo Trib. Code tit. 7, § 607-609 were intended to benefit individual Navajo 119 See Russell v. Donaldson, 3 Navajo Rptr. 209-213 (Window Rock D. Ct. 1982) (per Tso). 120 "See Naswood v. Foremost Financial Services, 3 Navajo Rptr. 138, 140 (1982). 121 'See Denying Self-Help Repossession, supra note 87, at 656. The special rules adopted by the Navajo judiciary to simplify and expedite replevin actions further reduce any impacts on credit practices within the Navajo Nation, assuming the validity of such rules. See discussion infra, at part V.C. 122 See Babbitt Ford, Inc. v. Navajo Indian Tribe, 710 F.2d 587, 593-94 (9th Cir. 1983), cert. denied, 466 U.S. 926 (1985). 123Jim v. CIT Financial Services Corp., 87 N.M. 362, 533 P.2d 751 (1975). 124. "Brown v. Babbitt Ford, Inc., 571 P.2d 689 (Ariz. App. 1977). See generally Williams v. Lee, 358 U.S. 217, 223 (1959). debtors, and not to apply to the commercial relationships entered into by enterprises of the Navajo Nation. Creditors have attempted to circumvent the requirement of written consent to repossession by various means. Often, creditors are able to obtain signatures on consent forms from Navajo buyers at the time of purchase. The Navajo courts have rejected this strategy, requiring in all cases that the written consent be obtained at the time that repossession is effected. The Executive Summary of the then-proposed Navajo Uniform Commercial Code (NUCC) gives the background of the Navajo Nation's efforts to enact a commercial code. The initial thrust was the formation of a task force in May of 1978. The task force "found that adoption of the NUCC would stimulate economic and business development by encouraging more bank financing of businesses on the Navajo Reservation." The University of Arizona's Office of Arid Land Studies studied the general question of Indian commercial codes from 1978 to 1980. A draft UCC was produced and examined by the Navajo task force in 1982. The task force ultimately decided to hire a law firm 125 Resolution No. CJA-1-86 (Jan. 29, 1986) [hereinafter NUCC]. The NUCC was amended by Resolution No. CD-61-86 (Dec. 11, 1986), clarifying the authority of the Commerce Department of the Division of Economic Development to promulgate regulations. The most recent supplement to the Navajo Tribal Code was published in 1987 and includes only the resolutions passed through the end of 1985. Therefore, this article cites to the sections of the NUCC as adopted by the Navajo Nation Council, rather than to a codified version. |