Barber v. Navajo Housing Authority

12 Am. Tribal Law 12
CourtNavajo Nation Supreme Court
DecidedJune 12, 2014
DocketNos. SC-CV-28-12, SC-CV-29-12
StatusPublished

This text of 12 Am. Tribal Law 12 (Barber v. Navajo Housing Authority) is published on Counsel Stack Legal Research, covering Navajo Nation Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barber v. Navajo Housing Authority, 12 Am. Tribal Law 12 (navajo 2014).

Opinion

[13]*13 OPINION

The appellants in two cases sued Navajo Nation entities. In both cases, the appellants filed a notice of intent to sue stating the information required by 1 N.N.C. § 555(A)(2) is set forth in the attached complaint. The appellants’ claims were subsequently dismissed for lack of jurisdiction under the Navajo Sovereign Immunity Act (“the Act”) because they had failed to include the nature of their claims and relief sought in the notice itself as required under 1 N.N.C. § 555(A)(2). We affirm the lower court’s dismissals.

I

On May 10, 2012, the Window Rock District Court dismissed and closed the case of Long v. Navajo Shopping Centers, Inc., holding that the plaintiff “was unable to establish to the Court’s satisfaction compliance with the Navajo Sovereign Immunity Act.” Order of Dismissal at 2, Long v. Nov. Shopping Ctrs., WR-CV-236-09 (W.R.Dist.Ct. May 10, 2012). The following day (May 11, 2012) the District Court entered another dismissal and closure in the case of Barber v. Navajo Housing Authority, holding that the plaintiff had not complied “with the procedural requirements for suit under the Navajo Nation Sovereign Immunity Act.” Order of Dismissal at 1, Barber v. Nav. Housing Auth., WR-CV-51-10 (W.R.Dist.Ct. May 11, 2012). In both cases, the District Court determined that the plaintiffs had not complied with the jurisdictional condition precedent provision at 1 N.N.C. § 555(A)(2) of the Act, which requires that parties seeking to sue the Navajo Nation must provide notice to the President, the Chief Legislative Counsel1 and the Attorney General, and such notices “shall state the name of each prospective plaintiff, the identity of each prospective defendant; the nature of all claims and relief which will be sought, and the correct address, name and telephone number of each prospective plaintiffs attorney or counselor (if any)”. In both matters the Appellants had attached a draft complaint to a notice of intent to sue. The notice, entitled “Notice of Claim,” stated an intent to sue, provided the counsel’s contact information and the name and identity of the plaintiff, and further stated that the attached draft complaint contained all information required by 1 N.N.C. § 555(A)(2). In dismissing both actions, the district court had deemed the notice of intent to sue and attachment of the draft complaint as insufficient pursuant to 1 N.N.C. § 555(A)(2). Subsequently, each of the Appellants timely filed their notice of appeal.

Because both complaints herein were dismissed for lack of subject matter jurisdiction for failure to comply with the procedural requirements of the Act, this Court will consolidate the two decisions of the lower court together to resolve the common legal issue.

At the outset, the Court notes that this is the first time parties have argued that a notice of intent to sue, whose necessary information is substantially set forth in an attached draft complaint, is sufficient to satisfy 1 N.N.C. § 555(A)(2) of the Act.

II

The sole issue in this appeal is whether 1 N.N.C. § 555(A)(2), which sets forth what a notice of intent to sue must contain as a jurisdictional condition precedent under the Navajo Sovereign Immunity Act, may be satisfied when the contents are not [14]*14in the notice itself, but in a draft complaint provided as an attachment.

III

This case involves an interpretation of the notice requirements set forth in the Navajo Sovereign Immunity Act. Whether the Appellants complied with the requirements is a question of law. Chapo v. Navajo Nation, 8 Nav. R. 447, 456, 5 Am. Tribal Law 384 (Nav.Sup.Ct.2004) (“The notice requirements of the Navajo Sovereign Immunity Act, 1 N.N.C. §§ 551 et seq., are jurisdictional, 1 N.N.C. § 555(A), and whether a plaintiff complied with them is a question of law.”). Questions of law are reviewed de novo with no deference given to the district court’s determination. Id. (citing Dale Nicholson Trust v. Chavez, 8 Nav. R. 417, 424, 5 Am. Tribal Law 365 (Nav.Sup.Ct.2004)).

IV

The Appellants argue that the district court erred in its dismissal because they fully complied with 1 N.N.C. § 555(A)(2) of the Act by providing the necessary information in a draft complaint attached to a properly served notice to sue, and that the Act does not require that the necessary information be provided within the notice to sue itself. Appellants contend that subsection 555(A)(2) does not require that the necessary information be on the face of the notice to sue, when that information is otherwise properly served on the required officials to give them notice of an impending suit. They submit that their notice with a draft complaint attached to it serves that purpose when taken together because the notice of intent to sue “provided all of counsel’s contact information, and the name and identity of the plaintiff. The attached complaint detailed the claims and relief that would be sought against the defendant, and provided the name and identity of the defendant.” Appellant’s Opening Brief at 5. We disagree.

Through the Act, the Nation has set forth circumstances under which it may be sued, and also sets forth detailed and precise methods by which suits may be commenced. 1 N.N.C. § 555(A) addresses the service method, timing of service, and contents of a notice of intent to sue as jurisdictional condition precedents. The plain language of subsection 555(A)(2) provides, unambiguously, that “[sjuch notices shall state” the necessary information as set forth in the subsection, not that the information may be contained in a separate document to be incorporated by reference. In other words, the plain reading of subsection 555(A)(2) dictates that the required information must be stated on the face of the notice of intent to sue itself in order for the procedural conditions required for suit to be brought against the sovereign to be satisfied.

We have previously found that each piece of information required to be contained in the notice of intent to sue, pursuant to subsection 555(A)(2), is a “jurisdictional condition precedent” for any claim for which immunity is waived under the Act. See Chapo v. Navajo Nation, 8 Nav. R. 447, 456, 5 Am. Tribal Law 384 (Nav.Sup.Ct.2004), cited and analyzed in Judy v. White, 8 Nav. R. 510, 532, 5 Am. Tribal Law 418 (Nav.Sup.Ct.2004) (pre-action notice requirements are jurisdictional). In Judy, we also stated that “[i]t is without question that our government cannot be sued except by its expressed consent. The Navajo Sovereign Immunity Act is the expression of that consent. It provides the means and manner by which suit will be brought against the sovereign ... limits suits against the sovereign to certain subject matters, [and] sets strict procedural [15]*15preconditions to suit.... ” Judy v. White, 8 Nav. R. at 532, 5 Am. Tribal Law 418.

The Act was drafted and enacted by the Council in 1980. Navajo Tribal Council Res. CMY-42-80 (May 6, 1980). In the minutes of that session, the notice procedure was thoroughly discussed, and successfully proposed to be re-written upon the comment that “No action may be brought against the Navajo Nation directly or indirectly without first given [sic] written notice by General Counsel 30 days prior to the filing of any such action. Such notice must state the nature of the claim .... ” Clarifying the Sovereign Immunity of the Navajo Nation at 358, Record of the Navajo Tribal (April 30, 1980) (emphasis added).

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Related

Santa Clara Pueblo v. Martinez
436 U.S. 49 (Supreme Court, 1978)
Nicholson Trust v. Chavez
8 Navajo Rptr. 417 (Navajo Nation Supreme Court, 2004)
Chapo v. Navajo Nation
8 Navajo Rptr. 447 (Navajo Nation Supreme Court, 2004)
Judy v. White
8 Navajo Rptr. 510 (Navajo Nation Supreme Court, 2004)
Navajo Nation v. RJN Construction Mgmt., Inc.
10 Am. Tribal Law 265 (Navajo Nation Supreme Court, 2012)
Milligan v. Navajo Tribal Utility Authority
6 Am. Tribal Law 731 (Navajo Nation Supreme Court, 2006)
Office of the Navajo Nation President v. Navajo Nation Council
9 Am. Tribal Law 46 (Navajo Nation Supreme Court, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
12 Am. Tribal Law 12, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barber-v-navajo-housing-authority-navajo-2014.