FAMILY COURT OF THE NAVAJO NATION JUDICIAL DISTRICT OF SHIPROCK, NEW MEXICO

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1 FAMILY COURT OF THE NAVAJO NATION JUDICIAL DISTRICT OF SHIPROCK, NEW MEXICO IN THE MATTER OF THE ESTATE OF: No. SR-FC CV SAM GOULD, C# 024,401, Decedent, ORDER DENYING MOTION TO DISMISS ROSE GOULD, Petitioner, vs MARY D. GOULD, Respondent. A Petition for Quiet Title was filed in the above captioned matter on October 15, On December 30, 2009, Respondent filed what she titled an Answer and Claim to the initial petition. On January 8, 2010, Petitioner filed a Motion to Dismiss with Memorandum of Points and Authority. The basis of Petitioner s motion is that Respondent was in essence filing a counterclaim and she failed to pay the fee for a counterclaim as required by law. Respondent filed a Response to Motion to Dismiss on January 11, 2010, asserting that Respondent was not filing a counterclaim but was filing a competing claim to the same property as Petitioner. The Court did not receive a Reply. Based upon the arguments presented in the pleadings the Court denies the Motion to Dismiss upon the following grounds: 1. A counterclaim is a claim for relief asserted against an opposing party after an original claim has been made. Black s Law Dictionary, Eighth Edition, Respondent has not filed a claim against Petitioner. The claim is essentially another petition to this Court to be recognized as having a right to property that has not yet been

2 determined due the death of the rightful possessor of the property without a will. In that position, Respondent is really a second petitioner, not a respondent. Petitioner is not seeking anything from Respondent, and Respondent is not seeking anything from Petitioner. Both are seeking a right to the same property as would various individuals might make claims to property in a probate action. 2. As noted in the petition this case was filed after the five year limitation for probate actions had passed. Estate of Goldtooth Begay, No. 2, 6 Nav. R (Nav. Sup. Ct (The statute of limitations for a probate action is five years. Out of necessity, courts permit quiet title actions that must determine property rights after the statute of limitations period for probate actions has passed. In the Matter of the Estate of Evans, 6 Nav. R. 494, 495 (W.R. Dist. Ct Although this is not a case issued by the Supreme Court, this Court recognizes the necessity and wisdom of this decision. This Court also takes judicial notice of the fact that family courts throughout the Navajo Nation have used quiet title actions to determine the rightful possession of property interests long after a probate action can be brought. It is not an uncommon practice for a family to continue to use a land use permit or a grazing permit for many, many years after the holder of a permit has died. 3. The Bureau of Indian Affairs and the Navajo Department of Agriculture keep track of grazing permits and land use permits. Such permits are normally utilized not only by the individual whose name is on the permit, but also by a family, even an extended family of blood and clan relations, who all take part in making use of the permit. However, the Navajo Nation does not have an effective mechanism for notifying 2

3 or reminding families that the name must be changed on a permit following the death of a permit holder Navajo Nation Code 217 (A states as follows: Upon the death of an assignee, his/her land use permit shall be transferred to his/her most logical heir as determined by the Navajo Nation Court. The Court shall make every effort to assign the land assignment as one unit or combine it with another. The Court shall make every effort to keep the land in one tract and not subdivide it. The law clearly requires a court to make a determination of who should be the holder of a land use permit after the permit holder has died. There is no other legal mechanism established on the Navajo Nation to perform this function. This function is necessary to keep an orderly and accurate transfer of property interests in land over a long period in time. Therefore, this function must be performed by a court whether or not the usual method of determining such transfers, an action in probate, can be completed. A quiet title action permits a court to make an orderly determination of possessory rights where the time for bringing a probate action has passed. 5. The Court notes that the Petition for Quiet Title also includes a residence built within the agricultural use area. 3 Navajo Nation Code 217 (B states, The disposition of personal property and improvements placed by the deceased upon the land assigned must (emphasis added be determined by the Navajo Nation Court. The Court interprets this law as requiring a court to make a determination concerning a house and other property that has attached to the land, such as sheds or fences, even if the statute of limitations period for probate has passed. 3

4 6. The next question is how a court should decide who is the most logical heir. The Window Rock District Court in Evans, above, stated, The rules of probate do not apply in quiet title actions. In the Matter of the Estate of Evans, 6 Nav. R. 494, 495 (W.R. Dist. Ct This Court does not entirely agree with this statement. While a court may include other factors to conclude who is the most logical heir than simply following the appropriate state laws of inheritance as set out in the Navajo Rules of Probate Procedure, a court must also meet the requirements of due process as required under the Navajo Bill of Rights in 1 Navajo Nation Code 3. The Court finds that a quiet title action must meet the same requirement for probate actions of actual notice to potential heirs included in the list set forth in Rule 6(9 of the Navajo Rules of Probate Procedure in order to give them an opportunity to participate in a quiet title action. A notice by publication alone is not sufficient to give family members an opportunity to participate. 7. Respondent asserts she is the daughter of the decedent in whose name the land use permit is currently held. She also asserts she was not given personal notice of this action but only learned of it through a publication in the Navajo Times. Apparently Respondent also has a brother who the Court assumes did not receive notice. Based upon these assertions the Court ORDERS that Petitioner provide a list of all of Decedent s relatives as listed in Rule 6(9 and provide them with actual notice of this action. See Malone et al v. Yazzie et al, 7 Nav. R. 88, 91 (Nav. Sup Ct ( All persons claiming an interest in the disputed land must be served notice of the proceedings. 8. Another probate rule this Court will follow is Rule 6(10 of the Navajo Rules of Probate Procedure: the recognition of a Navajo custom as determining the 4

5 distribution of property. One such custom is the family getting together right after a death to decide as a group how to distribute the property. This custom is commonly followed by the courts in peacemaking for all family and clan members who could be affected by the property distribution to come to a consensus in how it should be distributed. This procedure of using peacemaking has been used numerous times to determine both probate and quiet title actions in regard to land matters. These proceedings are often used by families and approved by courts even if they occur many years after the death of the permit holder. Such a procedure is appropriate because if a family is able to come to mutual agreement, and that mutual agreement is not contrary to law, the family is in a better position that a court to determine the best use of the property in question. Therefore, the Court encourages the parties to consider using peacemaking as an alternative solution to resolution in a court. 9. The next question is how a court should determine who is to be the most logical heir. The Court has not found in either the law or case law a definitive list of what it should consider. However, this Court recognizes five such factors for consideration: a. Consideration of the lawful heir or heirs: while the Court is not required to follow the rules as set forth in the Navajo Rules of Probate Procedure, which designate this as the only consideration, it is nevertheless important to consider in determining who is the most logical heir. b. Consideration of who is in the best position to make beneficial use of the land: The Supreme Court has recognized this as an important factor. In the Matter of the Estate of Wauneka, 5 Nav. R. 79, 83 (Nav. Sup. Ct (The Court may create a constructive trust controlled by an individual to make beneficial use of a land use permit 5

6 if following the laws of inheritance divides the land among family members such as to diminish its usefulness. Considering this factor could include who has actually been conducting agricultural practices on the land or who is the most skilled or dedicated to such practices. This also would include consideration of who has been personally involved in the beneficial use of the land. Begay v. Kedah, 6 Nav. R. 416, 421 (Nav. Sup. Ct , citing In Re Estate of Benally, 5 Nav. R. 174, 180 (Nav. Sup. Ct c. Consideration for keeping the property within the same family or clan: Land use permits are based upon older traditional use areas maintained by families prior to the system when land use permits granted to the same families the right to continue to use the same land for agricultural purposes. See In the Matter of the Estate of Wauneka, 5 Nav. R. 79, (Nav. Sup. Ct An important factor is whether the new assignee of a land use permit would continue to keep the use of the land within the same family or clan. d. Consideration for keeping the property within the maternal line (nishlinigii from mother to daughter: While this factor may not be of importance in this case, since the decedent is male, the Supreme Court has noted that this is an important factor because it is based upon Navajo traditional practice. Riggs v. Estate of Attakai Sc- CV-39-04, slip op. at 3-4 (Nav. Sup Ct. June 13, e. Consideration as to whether the future assignee will keep the land undivided: This was a key factor in In the Matter of the Estate of Wauneka, 5 Nav. R. 79, 83 (Nav. Sup. Ct and this factor is directed by 3 Navajo Nation Code 217(A, the law that requires Navajo courts to determine the holder of a land use permit following the death of a permitee. 6

7 There may be other important factors but these are the ones this Court recognizes. The parties are encouraged to submit other factors that they believe the Court should consider. Therefore, based upon the above findings of fact and conclusions of law, the Court Denies Petitioner s Motion to Dismiss. SO ORDERED this 19th day of March [Signed Hon. Genevieve Woody] Trial Court Judge of the Navajo Nation 7