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Law of Indigenous Peoples Paper Topic: Sean McKenzie

Examining Predatory Border Town Vehicle Sales from a Navajo Common Law Perspective

By Sean McKenzie

Background

            The Navajo Nation Human Rights Commission (“Commission”) has found that certain car dealerships located in towns surrounding the Navajo Nation “prey[ ] upon” Navajo consumers.[1] Predatory car sales practices include unethical sales practices designed to deceive consumers into signing unfair vehicle contracts.[2]  My research examined predatory border town car sales from a Navajo common law perspective. It found that efforts to address predatory car sales outside Navajo jurisdiction[3] should take into account Navajo common law values because these values may influence the car-buying experience of Navajo consumers. In particular, Navajo common law values can conflict with the values of car dealerships, making some Navajo consumers more vulnerable to predatory car sales practices.

Findings

            Western economic values emphasize individual economic success.[4] These Western economic models perceive the world as a competition between individuals for scarce resources.[5] Accordingly, Western economic models emphasize individual freedom and autonomy.[6] “The ‘self-made’ man is a hero.”[7] This individual-centric view influences Western law’s view of commerce.[8] Specifically, Western law tends to view commerce as made up of discrete transactions between individuals.[9] Western economic values therefore emphasize each party’s “freedom to contract”—the right of each party make a deal maximizing its own self-interest—even if such a deal negatively impacts the other party or community-at-large. 

            By contrast, Navajo fundamental law emphasizes harmonious relationships and healthy communities.[10] These values are reflected in the fundamental law doctrines of hózhók’é and k’éi.[11] Two important common law promissory values in the context of buyer-seller transactions flow from Navajo fundamental law’s emphasis on harmonious relationships and healthy communities: (1) the importance of dialogue, and (2) the sacredness of words. First, Navajo common law emphasizes that dialogue between parties to a transaction should be respectful, transparent, and honest because such dialogue preserves harmonious relationships.[12] Second, Navajo common law recognizes that “[w]ords are sacred and never frivolous in Navajo thinking[.]”[13] Accordingly, promises are sacred. As a result, some Navajo consumers, perhaps especially elders, may presume dealership employees will engage in transparent dialogue and honor oral promises because Navajo common law emphasizes respectful, transparent dialogue and the sacredness of words. In reality, border town dealerships are notorious for using words loosely to deceive consumers. For example, dealerships often make misleading or false oral statements to Navajo consumers regarding the condition of a vehicle, the terms of the warranty, and the loan package.

Limitations and Methodology

            Several methodological limitations affected this analysis. Most importantly, the author, an Anglo male who grew up in the Navajo Nation border town of Gallup, New Mexico, has no lived experience of Navajo common law. This analysis therefore relied exclusively on written materials to make hypotheses about how Navajo common law values impact the car-buying experience of Navajo consumer. While most of these written materials are primary sources, such as Navajo Supreme Court decisions, the author nonetheless interprets these texts through the eyes of an outsider. 


[1] Navajo Nation Human Rights Comm’n, Assessing Abuse of Navajo Customers When Purchasing Vehicles in Border Towns, 19 (Mar. 7, 2014), http://www.nnhrc.navajo-nsn.gov/docs/NewsRptResolution/PublicHearingReports/NNHRC_AutoReport.pdf.

[2] Id. at 13-18.

[3] The Navajo Nation has acted aggressively to combat predatory car sales within its border, including  passing the Navajo Consumer Protection Act. 

[4] See generally Adam Smith, The Wealth of Nations (1776); see also Valerie Phillips, Parallel Worlds: A Sideways Approach to Promoting Indigenous – Ionindigenous Trade and Sustainable Development 4 (October 4, 2007) (unpublished manuscript) (available at https://ssrn.com/abstract=1019077). 

[5] Id.

[6] Michael D. Lieder, Navajo Dispute Resolution and Promissory Obligations: Continuity and Change in the Largest Native American Nation, 18 Am. Indian L. Rev. 1, 57-58 (1993), https://digitalcommons.law.ou.edu/ailr/vol18/iss1/2

[7] Id. 

[8] Id.

[9] Id.

[10] Austin, supra note 69, at 40-41.

[11] Id.

[12] Green Tree Servicing, LLC v. Duncan, 7 Am. Tribal Law 633 (Nav. Sup. Ct., 2008).

[13] Kesoli v. Anderson Sec. Agency, 6 Am. Tribal Law 692, 696, 8 Nav. R. 724, 724 (Nav. Sup. Ct. 2005).

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