You asked whether the judgment of the Family Court of the Navajo Nation is sufficient
to validate the September 1977 marriage of Cecil \W~and Betty N~, even though the
Court issued the judgment after Cecil \W~ death, and even though Betty N~ failed to
present a marriage license or certificate from the Navajo Office of Vital Records.
Based on the facts and our legal research, you may find that the Navajo Family Court’s
judgment validates the Navajo common law marriage as of June 6, 1978, not September
1, 1977. Presentation of a marriage license or certificate is unnecessary. Even
using the June 6, 1978 date, Ms. N~ meets the ten-year duration requirement and may
be considered the number holder’s surviving spouse for the purpose of Title II benefits.
The number holder (NH), Cecil W~, died on April 24, 2007 while domiciled in the State
of Arizona. On July 8, 2010, Betty N~ applied as the NH’s widow for lump sum death
and surviving spouse benefits under Title II of the Social Security Act. Ms. N~ alleges
a Navajo common-law marriage to the NH since September 1977. From information submitted
to the agency, it appears that both Ms. N~ and the NH were members of the Navajo Tribe
who lived on the Navajo Reservation.
On his 2007 Title II retirement claim, the NH indicated a common law marriage to Betty
N~ that began in 1978. On her 2006 Title II retirement claim, Ms. N~ indicated only
one marriage to Louis N~ that began in 1970 and ended in divorce in 1978. Based on
the divorce decree you obtained at our request, the District Court of the Navajo Nation
granted “a decree of absolute divorce” on June 6, 1978.
In support of her claims for lump sum death and surviving spouse benefits on the NH’s
record, Ms. N~ submitted an April 23, 2007 souvenir marriage certificate from the
Immaculate Conception Roman Catholic Church in Albuquerque, New Mexico. She also
submitted a judgment from the Family Court of the Navajo Nation, entered on August
7, 2009, validating her marriage to the NH from September 1, 1977 through the date
of his death, April 24, 2007. The Navajo Family Court found that the couple established
the elements of a common-law marriage: they intended to be husband and wife; they
lived together (and had three children together); and they held themselves out to
the community as married people.
The Social Security Act (Act) provides that the widow or surviving divorced wife of
a fully insured individual is eligible for widow’s insurance benefits if she files
an application, attains age 60, and is not currently married or her subsequent marriage
was terminated. Social Security Act § 202(e)(1), 42 U.S.C. § 402(e)(1); see also 20 C.F.R. § 404.335 (requirements for widow’s benefits); Program Operations Manual
System (POMS) RS 00207.001 (relationship and entitlement requirements for widow and surviving divorced wife);
see also Social Security Handbook §§ 401, 406.
In determining the validity of a marriage or a claimant’s status as a widow, the agency
applies the law of the state where the insured individual was domiciled at the time
the claimant filed the application for benefits or at the time of death. Social Security
Act § 216(h)(1)(A)(i); 20 C.F.R. § 404.345; see also 20 C.F.R. § 404.303 (defining “permanent home” as “legal domicile”). Here, the NH
was domiciled in Arizona at the time of his death. We would generally apply Arizona
law to determine whether the claimant was validly married to the NH. However, if the
parties were subject to the jurisdiction of the Navajo Nation, we will apply Navajo
laws. See POMS GN 00305.090.
The Navajo Nation has inherent power to regulate the domestic relations between its
members. United States v. Jarvison, 409 F.3d 1221, 1225 (10th Cir. 2005) (“[T]he Navajo Nation retains sovereign authority
to regulate domestic relations law, including marriage of its Indian subjects”) (citing
Montana v. United States, 450 U.S. 544, 564 (1981)); see also B~ v. United States, 221 F.R.D. 679 (D.N.M. 2003) (evaluating the validity of a Navajo couple’s common-law
marriage under Navajo law). The Navajo courts also have jurisdiction to adjudicate
domestic relations between Navajo members and non-members. The Navajo Nation Code
lists the qualifications for Navajo membership. See 1 N.N.C. § 701.
7 N.N.C. § 253a(B) (“A Court of the Navajo Nation may exercise civil jurisdiction
over any person who assumes tribal relations with Navajos and the Navajo Nation by marriage, adoption, guardianship, or other enduring relationship with Navajos”) (emphasis
added); see also Montana v. United States, 450 U.S. 544, 565 (1981) (“A tribe may regulate...the activities of nonmembers who
enter consensual relationships with the tribe or its members”); S~ v. Salish Kootenai College, 434 F.3d 1127, 1131 (9th Cir. 2006). Here, the Navajo Tribe recognized both Ms.
N~ and the NH as members, and the Navajo Family Court judgment showed that Ms. N~
and the NH had Navajo Tribe census numbers. Furthermore, they resided on the Navajo
reservation. Therefore, the Navajo court had jurisdiction to adjudicate the validity
of their marriage. See J~, 409 F.3d at 1225.
The next question is whether the Navajo Family Court properly applied Navajo law. In
J~, the Court of Appeals for the Tenth Circuit provided a thorough analysis regarding
the development of marriage law in the Navajo Nation. J~, 409 F.3d at 1225-28. Historically, traditional Navajo ceremonies consummated a marriage
without further need of documentation. Id. at 1226. However, beginning in 1940, the Navajo Tribal Council sought to formalize
the marriage process by requiring couples to obtain marriage licenses. Id. Despite the resolution, Navajo courts continued to recognize “the validity of both
unlicensed traditional and common law marriages.” Id. Recognizing that many Navajo couples married without licenses, the Tribal Council
passed a resolution in 1954, validating all prior unlicensed Navajo marriages. Id. at 1227. Later, a 1980 Tribal Council resolution eliminated the 1954 cutoff date,
recognizing all traditional Navajo marriages, even if unlicensed. Id. In 1989, the Navajo Supreme Court limited application of the 1980 resolution to only
unlicensed marriages consecrated with a traditional ceremony and refused to recognize
common-law marriages as legally binding. Id. at 1228 (citing In re Marriage of F~, 16 Indian L. Rep. 6113 (Navajo 1989)). However, in 1993, the Navajo Tribal Council
overturned F~, passing a resolution that established the validity of common-law marriages. POMS
Precedent opinions issued prior to 1993 do not reflect changes to Navajo law regarding
the validity of common-law marriages. See POMS PR 05905.004 (Dec. 22, 1982) (opining that a previous Tribal Council resolution, passed in 1980,
would render a Navajo common-law marriage invalid because no ceremony took place);
POMS PR 05905.034(B) (May 4, 1990) (noting that the Navajo Supreme Court held that the Navajo Tribe
did not recognize common-law marriages) (citing In re Marriage of F~, 16 Indian L. Rep. 6113 (1989)).
Id.; J~, 409 F.3d at 1228; see also Navajo Nation Council Resolution No. CAP-36-93 (April 23, 1993). Navajo Nation Council
Resolution No. CAP-36-93 (Resolution) amended the Navajo Nation Code, providing for
the recognition of common law marriages. The Resolution does not explicitly indicate
that it will retroactively validate common law marriages contracted prior to April
23, 1993. However, even if the Resolution operated only subsequent to its date of
effectuation, Ms. N~ would still meet the durational requirement, as she sustained
the elements of a common law marriage from April 23, 1993 through the NH’s death in
As of April 23, 1993, the Navajo Nation Code explicitly provided for common-law marriages. Id.; 9 N.N.C. § 4(E). To establish a common-law marriage, a couple must show that: they
intended to be husband and wife, they consented to the marriage, they lived together,
and they held themselves out to the community as married. Id. The Family or Peacemaker Courts of the Navajo Nation may issue a judgment validating
a common-law marriage. See 9 N.N.C. § 10(A). In such judgment, the Court will ascertain the date of the marriage’s
inception. See 9 N.N.C. § 10(B). The Court may issue such a judgment even if one of the spouses
is deceased. See 9 N.N.C. § 10(A) (“If the petitioner’s spouse in such alleged marriage is not known
to the petitioner to be living, the petitioner must prove to the satisfaction of the
court that such spouse is dead...”).
The Court’s judgment is sufficient for establishing the validity of a common-law marriage. Based
on the permissive wording of the Navajo Nation Code, it appears that a marriage license
or certificate is not required for legal validity. POMS GN 00305.080 incorrectly states that a person claiming a valid common-law marriage “must present
a marriage license issued by the Navajo Office of Vital Records.” POMS GN 00305.080(B). Though
the Navajo Office of Vital Records may issue documents providing further evidence
of a valid marriage, as of April 23, 1993 such documentation is not required. See 9 N.N.C. §§ 6(E), 10(C), 11. See 9 N.N.C. § 6(E) (“Licenses are not required in order to establish a marriage under
the provisions of this part”); 9 N.N.C. § 10(C) (“Any judgment of validity of marriage
issued by a Court of the Navajo Nation . . . may be forwarded to the Navajo Office of Vital Records which may then cause the marriage to be recorded and a certificate of marriage to be issued”)
The Family Court of the Navajo Nation determined that Ms. N~ and the NH established
all four elements of a common-law marriage. Although the Navajo Office of Vital
Records could issue a marriage certificate based on the Navajo Family Court’s judgment,
no such certificate is necessary to prove the validity of the spousal relationship
to under Navajo law.
However, pursuant to the Navajo Nation Code, Ms. N~ could not enter into a valid common
law marriage with the NH until after her divorce to Louis N~ was final. See 9 N.N.C. § 5(A) (“In order to contract a Navajo Nation marriage...[b]oth parties
must be unmarried”). Her divorce to Louis N~ was not final until June 6, 1978. Thus,
the Navajo Family Court’s Judgment improperly validated the marriage as of September
CONCLUSION AND RECOMMENDATIONS
Based on the evidence submitted, Ms. N~ and the NH had a valid Navajo common-law marriage
from June 6, 1978 until the NH’s death on April 24, 2007. She is therefore eligible
for any benefits that may stem from this relationship.
We recommend updating POMS GN 00305.080 to reflect the changes to Navajo law regarding the validity of common-law marriages,
including removing the language that requires presentation of a marriage license to
prove the existence of a valid Navajo common-law marriage.