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Case Notes

Case Note: Kang v. Chinle Family Court (2018)

Introduction

Kang v. Chinle Family Court involves service of process requirements in divorce proceedings between a Navajo and a non-Navajo spouse in tribal court.[1] This case demonstrates the fundamental Navajo principles of Diné bi beenahaz’áanii as they apply to the jurisdictional laws of Navajo courts over non-Navajo spouses. In this case, the Supreme Court of the Navajo Nation clarified the concept of Navajo customary due process as rooted in the fundamental principle of k’e

Summary of Relevant Facts & Procedural History

On December 27, 2006, Mun Kang (“Petitioner”) and Chasity Kang (“Real Party in Interest” or “RPI”) were married in Virginia.[2] They lived together in Virginia until RPI left the family home with their children on March 18, 2017. On May 15, 2017, RPI filed a petition for divorce in Chinle Family Court (CH-FC-233-17), which she later voluntary withdrew.[3] On June 7, 2017, Petitioner filed for divorce in Virginia state court.[4] RPI was served and initially appeared telephonically, but thereafter she did not participate in the proceedings.[5]  

On June 20, 2017, RPI re-filed her divorce petition in Chinle Family Court (CH-FC-292-17); she did not inform the Chinle court of the previously filed Virginia divorce action nor was she able to serve Petitioner by personal service or certified mail.[6]Instead, RPI informed the court that Petitioner was served by publication in the Navajo Times.[7]

Meanwhile, on November 2, 2017, the Virginia court entered a Final Divorce Degree.[8] Then, on November 3, 2017, RPI moved for default judgement in Chinle Family Court for Petitioner’s failure to plead or otherwise defend against the action.[9]Subsequently, on February 6, 2018, the Chinle Family Court issued a default judgement dissolving the marriage, dividing property, and awarding custody to RPI.[10] However, On May 4, 2018, Petitioner filed a motion to set aside the default judgement alleging fraud/misrepresentation under Rule 60(c)(3) of Navajo Rules of Civil Procedure and a motion for a new trial under Rule 59(g).[11] The Chinle Family Court denied the motion for a new trial but did not rule on the motion to set aside the default judgement.[12]

Consequently, on August 17, 2018, Petitioner filed this suit alleging that the Chinle Family Court refused to rule on the motion to set aside the default judgement, which left him without an adequate remedy at law to address his arguments.[13]

Holding

The Supreme Court of the Navajo Nation held that jurisdiction of the Chinle Family Court was improper as the court failed to comply with service of process requirements and Navajo customary due process.[14] Under Rule 4(e)(3) of the Navajo Rules of Civil Procedure, “service by publication shall be made in one of three ways: 1) by publication of the summons in the Navajo Times, OR 2) in the newspapers where the person resides, OR 3) in the newspapers of the person’s last known residence for at least one week for four successive weeks.”[15] Furthermore, the Navajo Nation courts must implement service of process in light of the fundamental principle of k’e.[16]   

Summary of Analysis

In its determination, the Court rejects the Chinle Family court’s arguments that Petitioner was properly served via publication in the Navajo Times.[17] The Court reasoned that Chinle Family court erroneously interpreted Rule 4(e)(3) as requiring publication in the Navajo Times while rendering other avenues of publication as optional.[18] Instead, the Court held that Rule 4(e)(3) is properly interpreted as allowing for any of the three options for service by publication.[19] However, service by publication must be implemented in light of the fundamental principle of k’e, which “fosters fairness through mutual respect.”[20]

The Court further reasoned that the Chinle Family court failed to demonstrate how service via publication in the Navajo Times adequately fulfilled the requirements of procedural due process.[21] Although the Navajo Nation is not subject to due process requirements under federal or statutory Navajo law, Navajo customary due process requires “notice and an opportunity to present and defend a position” because it is recognized that k’e informs the Court’s interpretation of procedural due process.[22] Consequently, the principle of k’e required publication in the newspaper where Petitioner resided instead of the Navajo Times because it was not likely that Petitioner would have seen the publication.[23] Also, k’e required that Petitioner “as a hadane (in-law to the Diné) to be treated with fairness and respect to ensure notice and opportunity to defend.”[24]

Conclusion

Thus, the Court issued a Writ of Prohibition against Chinle Family Court.[25] The default judgement of February 6, 2018 was rendered void ab initio and the Chinle Family Court was ordered to dismiss RPI’s re-filed divorce petition (CH-FC-292-17) for lack of jurisdiction.[26]

Kristen Polk is a second-year law student at the University of New Mexico School of Law. She is a member of the San Carlos Apache Tribe from San Carlos, Arizona. 


[1] Kang v. Chinle Family Ct., No. SC-CV-37-18, 2018 WL 5099218, at *167 (Navajo Sept. 21, 2018). 

[2] Id. at 167. 

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id. at 168. 

[14] Id. at 169. 

[15] Id. at 168-69. 

[16] Id. at 169. 

[17] Id. at 168-69. 

[18] Id. 

[19] Id.                                        

[20] Id. at 169. 

[21] Id. 

[22] Id.

[23] Id.

[24] Id.

[25] Id. at 170. 

[26] Id. 


By Tribal Law Journal Blog

The Tribal Law Journal was established in fall 1998 for the purpose of promoting indigenous self-determination by facilitating discussion of the internal law of the world’s indigenous nations. The internal law of indigenous nations encompasses traditional law, western law adopted by indigenous nations, and a blend of western and indigenous law. Underscoring this purpose is the recognition that traditional law is a source of law.

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