This memorandum is in response to your request for our supplemental opinion regarding
the marital status of the subject individual at the time of his death in order to
determine which of two women is the legal widow.1_/ With this request you provided
additional development and information including a copy of Navajo Tribal Resolution
CJ-3-40. You also provided us with the deceased wage earner's social security claims
folder. Essentially, you requested that we reassess our earlier opinion that Elizabeth
E~ is the decedent's legal widow by giving particular consideration to the question
of whether Herbert S~ and Helen B~, his first wife, could have been divorced by tribal
custom the face of Resolution CJ-3-40, which addresses the method by which such divorces
must be accomplished. Accordingly, for purposes of this opinion, we reevaluated the
information in the decedent's social security file in light of the new information
you supplied and in consideration of Navajo Tribal Resolution CJ-3-40. We also analyzed
the facts in relation to 1989 decision of the Navajo Nation Supreme Court, in which
that court has reversed its earlier opinions on the validity of common-law marriages
For the reasons set forth below, we have concluded that Helen b~ not Elizabeth E~,
is the legal widow of Herbert S~ for purposes of entitlement to Social Security benefits.
This opinion supercedes and reverses our April 15, 1988 opinion, in which we concluded
that Elizabeth E~ was Herbert S~ legal widow.
We would note here that our ability to outline the facts is somewhat hampered because
the information contained in the claims folder is contradictory. Statements made by
each claimant and members of their respective families are often inconsistent. Nevertheless,
the following appear to be the most relevant and salient "facts" as we understand
them from the claims folder.
Helen B~ and Herbert S~ were married by Navajo tribal custom ceremony in Farmington,
New Mexico, on November 15, 1943. This marriage was recorded by Bureau of Indian Affairs
on May 13, 1952 based on information given by Rev. J. C. K~ and was validated by the
effect of Navajo Resolution CF-2-54 (Tribal Custom Marriages Prior to 1954). Three
children were born of this marriage: Raymond, born at Fort Defiance Hospital (Arizona)
on February 25, 1948; James, born at Rock Springs, Wyoming on January 30, 1950; and
Christine, born at Shiprock Hospital (New Mexico) on August 31, 1951.2_/. In a July
8, 1981 statement, taken at Shiprock, New Mexico, Helen S~ stated that she and Herbert
lived together as man and wife since "1947" in the states of New Mexico, California,
Wyoming and Idaho, separating in 1954, when their oldest child was six years old.
According to this statement, when the couple separated, they did not try to get a
divorce. In her December 19, 1988 application for widow's benefits, Helen stated that
she and Herbert were married in 1943 in Farmington, New Mexico, and separated in July
1979 "because of marital problems". Neither party sought or obtained a divorce.
In separate statements dated October 20, 1988 and December 19, 1988, respectively,
Rachel S~ and Mary Lee M~ Helen's sisters, stated that Helen and Herbert S~ were never
divorced. These statements are verified by a BIA "Marital Status Record," dated April
21, 1988, and a BIA certification of marriage between the applicant and Herbert Y~,
also the name of Herbert S~.3_/
Elizabeth E~ S~ initially applied for young mother's insurance benefits on January
26, 1981 as the widow of Herbert S~ claiming that they were married by common-law
in Idaho Falls, Idaho in 1956. She stated that the couple lived in Idaho Falls from
June 1956 until November 1960, when they resettled in Thoreau, New Mexico. In a 1987
application for benefits and Statement of Marital Relationship, however, she claimed
that she and Herbert were married by Navajo "tribal common law" and a tribal custom
ceremony in 1958, but they never tried to get a tribal Tribal Court Order dated January
8, 1986 (later amended nunc pro tunc to correct errors) validating her marriage to
Herbert S~. In the Matter of Validating The Marriage of Elizabeth E. S~ , C #86,392,
Petitioner, and Herbert S~ (Deceased), C #11109-A, Civil Action No. CP-CV-206-85 (Crownpoint
D.C. 4/6/87). In this ex parte order, the Navajo District Court, finding jurisdiction
pursuant to Navajo law, decreed, among other things, that Elizabeth and Herbert S~
"started living together as husband and wife on October 15, 1957, and they have lived
together as husband and wife since then to the time of Herbert S~ death." Id. The
court ordered that the marriage be validated as of October 15, 1957 and legitimates
the seven children born of the union.
In separate statements, each dated April 20, 1987, Bixie E~, Elizabeth's sister Elizabeth
and Mar S~, Herbert's mother, said that Elizabeth and Herbert were husband and wife.
Betty C~, a neighbor of Elizabeth, signed a statement dated April 19, 1987, stating
that she knew Herbert and Elizabeth to be husband and wife.
In support of her claim to be Herbert's legal widow, Elizabeth also submitted Herbert's
1979 Income Tax return listing herself as his wife, and the birth certificate of Herbert
S~, Jr., born on March 30, 1962, which shows the residence of his parents, Herbert
and Elizabeth, in Roberts, Jefferson County, Idaho. Herbert S~ death certificate lists
Elizabeth as the surviving spouse.
A search of the divorce court records in San Juan County, New Mexico; Bingham County,
Idaho; Bonneville County, Idaho; and Idaho Falls, Idaho, produced no record of divorce
for Herbert or Helen B~ S~. Likewise, a similar search of Navajo tribal records produced
neither a record of a Certificate of Divorce by the Navajo Tribal Court nor a record
in the Tribal Census Record of separation or divorce between Herbert S~ and Helen
As you know, under the Social Security Act, the law of the state in which the wage
earner died domiciled determines the family relationships of persons seeking to claim
benefits on the DWE's record. 42 U.S.C. 416(h)(2)(A). In this case, all parties are
members of the Navajo Nation, subject to Navajo tribal law, and the DWE was domiciled
on the Navajo reservation, in New Mexico, at the time of his death. Therefore, although
we have examined the law of the states which have some relationship to the parties,
i.e., New Mexico and Idaho, it is our view that Navajo tribal law rather than New
Mexico law would determine the family relationships of the claimants.
We note that our April 1988 opinion regarding the validity of a common law marriage
between Elizabeth and Herbert was predicated largely on our determination that the
1986 Navajo Tribal Court order validating the marriage of Elizabeth E~ and Herbert
S~, as issued by a court of competent jurisdiction, reflected not only the Navajo
court's recognition of common-law marriages generally but also the court's assumption,
that, in the absence of records of a tribal divorce, Helen and Herbert were divorced
by tribal custom since the court found that there was no impediment to the marriage
of Elizabeth and Herbert 4_/. It now appears, however, that notwithstanding the court
order, the marriage of Elizabeth and Herbert was not valid not only because the Navajo
Tribe does not recognize common-law marriage, but because there was a legal impediment
in that the marriage between Helen and Herbert was never terminated.
It is universally recognized that the validity of a marriage will be determined by
the local law which has the most significant relationship to the spouses. RESTATEMENT
(SECOND) CONFLICT OF LAWS §283. This is generally held to be the place where the marriage
was contracted. If recognized in that jurisdiction, a marriage will be recognized
Idaho law recognizes common-law marriages. Metropolitan Life Insurance Co. v. Johnson,
645 P.2d 356 (Ida. 1982). New Mexico law does not. In re Estate of L~, 655 P.2d 1001
(N.M. 1982). Moreover, the Navajo Supreme Court recently has held that common- law
marriage, which is not the same as tribal custom marriage, is not recognized by the
Navajo Tribe. In re: Validation of Marriage of Francisco, No. A-CV-15-88 (Nav. Sup.
Ct. August 2, 1989), 16 Ind. Law Rep. 6113 (1989)(copy attached). In that case, the
Court noted that common-law marriage is a product of "Anglo practice that is unknown
and unrecognized in traditional Navajo society" and finding that earlier cases on
the subject had blurred the distinction between common-law and traditional tribal
custom marriages, specifically overruled In re Marriage of Ketchum, 2 Nav. R. 102,
(1979) and Navajo Nation v. Murphy, A-CR-02-87 (Apr. 21, 1988 slip op.) The Francisco
Court also stated that common-law marriage is not recognized by Title 9 of the Navajo
Tribal Code. 16 Ind. Law Rep. at 6114. The Court emphasized that Navajo custom does
not recognize con, non-law marriages, regardless of whether one or both spouses are
Navajo, overruled all prior rulings that Navajo courts can validate unlicensed marriages
in which no Navajo tribal ceremony occurred, and stated that the Court will not construe
any section of Title 9 as authorizing judicial validation of common- law marriages.
The F~ decision also appears to invalidate that portion of the Navajo Tribal Code
which states that marriages between Navajo Indians contracted outside of Navajo Indian
country are valid within Navajo Indian country if valid by the laws of the place where
contracted. NAVAJO TRIBAL CODE, Title 9, §1. Thus, in light of the F~ decision, it
is our view that a common law marriage between Elizabeth and Herbert, whether or not
valid in Idaho, would not now be recognized by the Navajo Supreme Court.
Based on inconsistent statements of Elizabeth E~, however, not only is the situs of
her marriage to Herbert unclear, 5_/ so is the type, i.e., whether or not the marriage
was common-law or tribal custom or successively both. Regardless of which type of
marriage she claims, however, both parties must have been free to enter into marriage
for the marriage to be valid.
It is generally held that where a party has contracted a series of marriages, the
law presumes that the latest marriage is valid. New Mexico law follows this presumption
of validity of a second marriage. Panzer v. Panzer, 528 P.2d 888 (1974). This presumption
can be overcome by clear and convincing evidence in the nature of proof of a prior
marriage which has not been terminated by death or divorce. Id. If such evidence is
presented, the burden shifts to the second spouse to show that the earlier marriage
was ended. Navajo caselaw is silent on the issue, but the Navajo Tribal Code is not.
The Code specifically states that in order to contract a Tribal marriage "both parties
must be unmarried. If either party has been previously married, the marriage must
have been dissolved by death of the spouse or by a valid decree of divorce". NAVAJO
TRIBAL CODE, Title 9, §5.
Thus, it is unimportant whether or not Elizabeth and Herbert were married in a traditional
tribal custom marriage because there is no evidence that his prior marriage to Helen
B~ was properly terminated according to either Navajo tribal law or state law. Since
1940, when the Navajo Tribal Council passed Resolution CJ-3- 40, which, among other
things, authorized the Court of Tribal Offenses to grant divorce for cause for all
marriages consummated by Tribal Custom Ceremony, the Navajo Tribe has required that
all such divorces must be recorded in the "Agency office", with a Certificate of Divorce
to be issued by the Tribal Court. The Resolution further stated that no person married
by Tribal Custom who claims to have been divorced shall be free to remarry until a
certificate of divorce has been issued by the Tribal Court, and provided penalties
for violation. This Resolution subsequently was codified at NAVAJO TRIBAL CODE, Title
As earlier noted, not only is there is no record of a Certificate of Divorce terminating
the marriage of Helen and Herbert pursuant to the provisions of the Code, there is
no record of a divorce in various jurisdictions off the reservation where Herbert
resided after he separated from her. Hence, in the absence of any record and in light
of this Resolution and the corresponding provisions in the Tribal Code, it is our
view that an inference that the marriage of Helen and Herbert was terminated by tribal
custom is not reasonable.
In our view, the 1986 ex parte order of the Tribal Court purporting to validate the
marriage of Elizabeth and Herbert does not warrant a determination that Elizabeth
is to be considered his legal widow. It is well established that the Secretary is
not bound by ex parte orders of a state trial court, but rather is at liberty to determine
the law of the state as it would be determined by the highest court of the state.
Warren v. Secretary of Health and Human Services, 868 F.2d 1444, 1445 (Lth Cir. 1989);
Cain v. Secretary of Health Education and Welfare, 377 F.2d 55 (4th Cir. 1967). Under
the law of all relevant jurisdictions, Helen has met her burden of proving that the
marriage of Herbert and Elizabeth was invalid, because Herbert was married to her
at the time his marriage to Elizabeth was contracted and there is no evidence that
such marriage was terminated. Hence, it is proper for the Secretary to find that she,
and not Elizabeth, is entitled to Social Security benefits.
In summary, after our review of the facts you presented under the relevant law, it
is our opinion that Helen B~, not Elizabeth E~, is the legal widow of Herbert S~.
The 1986 court order validating the marriage of Elizabeth E~ and Herbert S~ does not
comport with the law of the Navajo Tribe and is, therefore, not binding on your determination
as to eligibility for benefits on the DWE's record. We also suggest that you should
revise POMS Section GN00305.216 Navajo Tribal Common Law Marriage to reflect the Navajo
Supreme Court's decision in In re Validation of Marriage of F~, supra.
l_/In our earlier opinion, dated April 15, 1988, based on the information before us
and our analysis of the law, we determined that a valid common law marriage existed
between the deceased wage earner and Elizabeth E~ despite the absence of evidence
of a divorce between the DWE and Helen Balone S~.
2_/A fourth child, Harriet, born on December 7, 1956, is listed on the Bureau of Indian
Affairs (BIA) Family Card, but no further information is given.
3_/ Number 11109-A, the Tribal Roll Number of 'Herbert Kee Y~, is the same number
as that of Herbert S~. See BIA Tribal Enrollment Services Family Card, September 16,
1985; BIA Marital Status Record, April 21, 1988.
4_/Elizabeth E~ is listed on BIA tribal census records as the wife of Jimmy M~. .The
BIA records also show that Jimmy M~ married Freda W~ in 1972, as shown by a tribal
5_/Elizabeth's statements concerning the time and type of her marriage to Herbert
are not consistent. First, she stated that she and Herbert were married by common-law
in Idaho in 1956 and lived there until November 1960. Later she stated that they only
lived together in Idaho, but actually were married by tribal custom ceremony in New
Mexico in 1958. The court order, however, recites that Herbert and Elizabeth were
recognized and known to be husband and wife within the community of Thoreau, New Mexico
from October 1957.