PR 05905.004 Arizona
A. PR 11-140 Validity of Navajo Common-Law Marriage as Memorialized by Family Court of the Navajo Nation – Arizona Number Holder - Cecil W~ Claimant - Betty N~
DATE: August 5, 2011
The number holder (NH) and the claimant had a valid Navajo common-law marriage from June 6, 1978, until the NH’s death on April 24, 2007. The claimant meets the 10-year duration of marriage requirement and is the NH’s surviving spouse for benefit purposes.
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 April 2007.
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”) (emphasis added).
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 1, 1997.
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.
B. PR 82-063 (Navajo Tribal Law) Roy L. B~ - Indian Tribal Marriage
DATE: December 22, 1982
MARRIAGE -- COMMON-LAW MARRIAGE -- GENERAL
(1) A decree of the Navajo Tribal Court validating a marriage based upon a provision of the Navajo Tribal Code which specified that only marriages contracted prior to January 31, 1954, may be validated exceeded the jurisdiction of the Court and need not be given effect.
(2) The Navajo Tribal Court has adopted the English Common-Law elements of common-law marriage.
(3) Since statements in this case imply an intent to live together without benefit of a legal marriage the requirements for common-law marriage are not met. (B~ Roy L. ~, RA IX (Treloar) to RC 12/22/82)
The wage earner, Roy L. B~, died on September 7, 1977. On November 20, 1980, Jane R. (T~) B~ applied for child's benefits for her daughter, Violet J. T~, and mother's benefits on the deceased wage earner's account. She has stated at times that she married the deceased wage earner on June 18, 1971, in Indian Wells, Arizona; she has also stated that they merely began living together then. They had a child, Violet, on April 26, 1972. After the wage earner's death, Jane petitioned the Navajo Tribal Court to certify that their "marriage" was validated pursuant to Tribal Council Resolution CF-2-54. On March 31, 1978, the Navajo Tribal Court at Window Rock, Arizona, decreed Jane and Roy to have been validly married by virtue of having lived as husband and wife and having been recognized as such in the Indian Wells community. The court decree was issued udder Title 9, sections 61-62, of the Navajo Tribal Code ("N.T.C."), and stated that the marriage validation decree was issued pursuant to Tribal Council Resolution CF-14-57.
In an opinion request dated July 14, 1981, you asked us whether this decree should be given effect in light of the fact that as of the date of its issuance, the Navajo Tribal Code provided that only marriages contracted prior to January 31, 1954, could be validated. By memorandum opinion dated September 17, 1981, we advised you that we agreed with your initial conclusion that the Tribal Court had no power to issue the decree. We reserved any conclusion as to the legal effect to be given the decree, however, in favor of suggesting that you develop the case as a possible common law marriage. Such marriages are permissible for Navajos living on the reservation under the 1979 Navajo Tribal Court ruling in In re Validation of Marriage of K~ 2 Nav. R. 102. (See our opinion in the case of J. G. Y~ , September 11, 1981.)
You secured further statements from the claimant and certain other individuals, addressing the elements required for a common law marriage. Apparently because you concluded that the claimant could not meet those requirements ("under the usual common law rules"), you resubmitted the case with two legal questions. First, you asked whether different standards might be applied, in evaluating Navajo common law marriages, due to the variations between the culture and traditions of the Navajo Tribe and those of England, the source of the common law marriage doctrine as found in state law. Second, you requested that we decide the legal question reserved in our prior opinion in this case: whether SSA must give effect to the March 31, 1978, Tribal Court decree validating the claimant's "marriage" to the deceased wage earner.
In response to your first question, we see no viable basis for applying different standards in evaluating alleged Navajo common law marriages. As we stated in our Y~ opinion, cited above, the Tribal Court in K~ adopted the "majority" position on the elements required for the formation of a valid common law marriage. The cases it cited for the basic rules involved New Mexico, Idaho, and New York state law. In adopting the common law marriage doctrine for Navajo law purposes, the court cited an 1878 U.S. Supreme Court case for the proposition that "common law marriage . . . exist[s] absent a statute to the contrary." (A copy of K~ was attached to our Y~ opinion.)
Thus, the doctrine clearly is not traceable to Navajo culture and customs; rather, the Tribal court adopted the (English) common law marriage doctrine, as reflected in the laws of various states, for purposes of assessing the marital status of members of the Navajo Tribe. In judging whether a common law marriage has been established, you should rely on past precedent opinions explaining the three elements required for such a marriage: present consent to be husband and wife, actual cohabitation, and an actual holding out to the community as married. In this particular case, we would agree with the conclusion reached in the "Special Determination" form in the claims file, that no valid common law marriage existed between the deceased wage earner and the claimant. The "Statement of Marital Relationship" form, completed and signed by the claimant on November 16, 1981, is particularly instructive on the parties' lack of consent or agreement to be husband and wife.
Given that no common law marriage existed between the parties, we must determine what effect, if any, you should give to the Tribal Court decree of March 13, 1978, validating the parties' alleged "marriage." As we discussed in our prior opinion in this case, the Tribal Court exceeded its jurisdiction in rendering that decree, for at that time the Tribal Code permitted validation of non-ceremonial marriages occurring only on or before January 31, 1954. 9 N.T.C. §§61-62. At the time the decree was entered, however, a reported Navajo Court of Appeals case (In re D~, 1 Nav. R. 1 (1969)) apparently had held that such a decree could be issued, despite the clear wording of section 62. Any such holding in D~ was specifically overruled in the K~ case, cited above. Because D~ was clearly incorrect, having misapplied the applicable Code provisions, it would be insufficient as a legal basis for any Tribal Court ruling. Therefore, you need not give effect to the March 13, 1978, Tribal Court decree validating the claimant's "marriage," for the Court exceeded its jurisdiction in rendering it. In re Validation of Marriage of K~, cited above.
You should be aware that the Navajo Tribal Council passed a resolution (CAP-36-80) on April 30, 1980, which may have been intended to modify the validation rules in sections 61 and 62, as applied in K~. That resolution provides, in pertinent part, for "the deletion of January 31, 1954 as the cutoff date for Tribal custom marriages which can be validated by the Courts of the Navajo Nation." This clause would appear simply to delete the January 31, 1954, cut-off date from section 62. As a result, the claimant would now appear to be able to request a Tribal Court decree validating her "marriage" to the wage earner.
The issue is not that clear-cut, however, for other language in the resolution limits its application to cases not even encompassed by section 61. Specifically, the Tribal Council authorized "validation of [Tribal custom] marriages regardless of their dates of inception, upon submission of proof to the Courts of the Navajo Nation that such marriage ceremonies have in fact occurred and that the persons involved are recognized as man and wife in their communities" (emphasis added). (Section .61 applies to marriages not contracted by church, state or Tribal custom ceremony" (emphasis added).) Thus, it is unclear what, if any, effect will be given to Resolution CAP-36-80. On its face, it would not permit validation of the claimant's "marriage," for she and the wage earner never had any ceremony.
Quite frankly, we have serious doubts as to whether the claimant could secure a decree validating her "marriage" if she informed the court of all of the facts known to SSA in this case--in particular, her admissions on the November 16, 1981, "Statement of Marital Relationship" form that: she and the wage earner "just started living together"; their initial understanding was "to live together until death" but that later changed; their relationship could-"end anytime"; they knew-they needed "a valid marriage license" but they never obtained one; and she did not use his last name because "we were not legally married yet." On the other hand, section 61 is worded so broadly (e.g., "all purported marriages"