United States v. Jarvison

being shamefully. treated played —were

And that was not so. in San Antonio Communi- hospital Hospital got an injunction and the Re-

ty get should Director of the NLRB

gional in this case. Like cases should

one alike.

treated America,

UNITED STATES

Plaintiff-Appellant, JARVISON, Defendant-Appellee.

Ben

No. 04-2093. Appeals,

United States Court

Tenth Circuit. testify and could as to

served abuse concerning statements the abuse made to her both the defendant Ben Jarvison alleged determining and the victim. After had a valid Jarvisons court denied the the district testimony. compel motion to Esther’s On appeal, government argues that in refusing compel district court erred to testimony on the of the Esther’s basis spousal privilege, testimonial alternative invites us create a new ex- ception spousal privilege testimonial jurisdic- Exercising for child abuse cases. tion under 18 we AFFIRM U.S.C. denying gov- the district court’s order compel motion Esther ernment’s Jarvi- testimony son’s and decline the exception ment’s invitation to create a new allowing compel courts to spousal adverse testimony involving allegations cases child abuse.

I appeal This centers around Esther Jar- (“Esther”) testify against vison’s refusal (“Jarvison”) in a Ben Jarvison criminal Lee, case in which Jarvison is accused of sexu- Marrón Assistant United States At- (David ally abusing granddaughter, their Jane torney Iglesias, C. United States government Doe. After the indicted brief), Jarvi- Attorney Albuquer- with her on the NM, aggravated son for sexual abuse of a minor que, for the Plaintiff-Appellant. Country, attempted child Indian Gorence, Robert J. Robert J. Gorence & compel testify against Esther to Jarvison. Associates, P.C., NM, Albuquerque, for the Esther, 85-year-old Navajo woman Defendant-Appellee. speaks quite English, who limited and Jar- KELLY, ANDERSON, vison, old, years Before who is 77 are residents of LUCERO, Judges. Circuit Indian Reservation and en- rolled members Tribe. Jar-

LUCERO, Judge. Circuit only speaks English, vison also limited In interlocutory involving appeal mostly Navajo. communicates The tes- defendant, Jarvison, claim that the Ben timony proffered by in- married, validly the United States con- allegedly volves statements made Esth- tests the district court’s exclusion of testi- Investigation er to Federal Bureau of mony (“FBI”) the basis of the testimoni- investigators Police privilege. part underlying al As of' the an untaped, English-language interview. prosecution, child sexual abuse contends that Esther sought compel States stated that she the child touch observed pants,” Jarvison who contend ob- “over his penis Jarvison’s Jane daughter told Esther that Jarvison with the over the next allegedly Doe fifteen years. parts, relationship and that with the private had touched her ended, daughter and Esther moved back in the child had told Esther Jarvison with ensuing years, Jarvison. Over the pants him the crotch of his touched over separated Esther and Jarvison and recon- had told her not to do so.1 Esther and he times, in multiple began ciled and statements. denies that she made such together again live on a full-time basis. preparations, the part pretrial As of its by The documents submitted govern- the government subpoe- served Esther with a ment reflect that in alleged when the compel testimony days na to two before a occurred, sexual abuse living Esther was During in case. the pretrial hearing with Jarvison and was still cohabiting with that hearing, emphatically Esther stated in him 2003 when FBI by interviewed the testify against she did not want to her about alleged Police the abuse. and that she and Jarvison had husband These FBI upon by statements relied Navajo ceremony in a married government state that “[Esther] JARVI- Coyote Canyon within the Res- SON and BEN have been for married over ervation on June 1953. The district years.” court found that the had a valid Jarvisons The court allowed the marriage based this 1953 present from witness Vital that ceremony, and concluded testify Records Office to to certain records spousal privilege applied testimonial under on Jarvison maintained Na Trammel v. United tion that stated “no” in the block marked (1980). 906, L.Ed.2d 186 “married,” but did list Esther as Jarvison’s court, govern- Before the district “wife.” These documents also listed all of argued marriage that ment was Jarvison’s children as Esther and Jarvi (1) had not valid because: Esther testified son’s. After the court denied motion to its every element of a “traditional ceremo- compel Esther’s on the basis (2) Code; ny” Jarvi- marriage the existence of valid and the had not the traditional mar- sons recorded spousal privilege testimonial under Tram riage government; with the tribal mel, government requested reconsider (3) intervening relationship an with supplement ation and moved the record daughter extinguished any had Esther’s documentary with additional evidence to in- marriage. government’s proffer that oc show no valid had ever proposed cluded evidence that the Jarvi- two curred. These exhibits consisted together sons lived from 1953 until at investigatory the two made reports point out upon which Esther moved Jarvi- documents 2003. The court admitted the son’s commencement of sexual relation- nothing but that found contained ship daughter prior with Esther’s from a conclusion would cause to reexamine its Jarvison had two children with were married and that the Jarvisons prior privilege applied.2 and four children testimonial er, hearing, prosecution it could 1. At the time of the Jane Doe’s father in the current potentially provide an being investigated raping Jarvison’s defense with was also for Jane crime, however, explanation knowledge sexual alleged Doe. This occurred minor victim. jurisdiction outside the of the United States pending prosecutorial and was decision in the Attorney's Eleventh Judicial District Office 2. The contends that the district Gallup, opportunity New Mexico. The existence of this court’s denial of the to cross ex- relevant, prejudi- allegation additional abuse howev- amine Esther on her was any credibility, uphold and must witness interlocutory appeal This finding permissible that is district ment followed. light of the evidence. Id.

II States contends United court decision reviewing district When determining court erred evidence, review the district to exclude we under traditional Jarvisons were married of discretion. court’s decision for abuse married, law, that even if F.3d Wittgenstein, United States a sham or moribund was (10th Cir.1998). we solely testifying. to avoid The sec- created novo, States legal review issues de was a argument ond —that (10th Kirk, 1162, Cir. F.2d 1163 solely v. 894 and was created sham or moribund 1990), factual accept the court’s we must ar- testifying to avoid not raised or —was they were findings unless we conclude gued below before the district court Manning v. clearly government’s original erroneous. United the motion either (10th Cir.1998). States, 808, Accordingly, we de- 146 F.3d 812 motion to reconsider. clearly time on finding A of fact is not erroneous cline to address it for the first appeal. Singleton Wulff, in the v. support unless “it is without factual record,” L.Ed.2d “after review 49 826 or unless the court Walker, (1976); evidence, In re 959 F.2d 896 with a definite ing all the is left (10th Cir.1992).3 court and firm conviction that the district ap Id. We view the evidence on erred.” A to the peal light the most favorable ruling, giving regard analysis due to Our of the district court’s district court’s that the had a valid opportunity judge the court’s to conclusion Jarvisons district ruling cross examination due we are convinced that the Esther limited the cial. Unless prejudicial, court is age frailty, provided of the court was the trial to the witness’s the governor duty the of the trial with the to government opportunity to call with a full proper the of assure its conduct and limits present proffer other witnesses and to of necessarily lie within its cross-examination they would what believed Esther’s Begay, States v. 144 discretion. See United record, evaluating we are establish. After the (10th Cir.1998) (review F.3d 1339 ruling under not convinced that the court's limitations of witnesses on cross-examination prejudicial. these circumstances was discretion); States v. Jack- for abuse of United son, (exercise (10th Cir.1973) 482 F.2d 1167 directly own evidence on extent of cross-examination discretion argument. In the contradicts this we should not be overruled unless are con- supplement ment's to the record on its motion ruling prejudicial). Al- vinced the court’s is court, reconsider, by the to allowed though the district court should have allowed concerning the FBI statement Esther’s inter- the Government to cross-examine Esther on April long 2003 reflects that be- view on her claim of its failure to do so any prosecution, fore indication of criminal prejudice must be evaluated for after consid- investigating agent told the that she totality presented ering the the evidence "married for over and the defendant had been allowing addition to years” 50 and further in its motion for recon- government present a witness and records sideration, government stated that Esther Office, Vital Records from living had been with Jarvison since 2000. government pres- district court allowed the presuming by the facts adduced Even proffer what believed the evi- ent true, government government makes as show, allowing dence well as would showing support no that would a conclusion supplement the record in its either a sham or mori- motion for reconsideration. bund. court itself conducted the examination 1738); marriage requires us first to examine what of 28 U.S.C. Cowboy Halwood v. Sales, Inc., Auto of a mar- N.M. apply question law would P.2d (1997) (same). 1088, 1090 two tribal members riage between assumes that New Mexico law is appli completely who live within the boundaries by cable law which to measure the validity Navajo Reservation. The district of the of the marriage, but discusses law marriage un- implicitly evaluated the because recognizes New Mexico valid com stating that: “The Court is der jurisdic mon law from other opinion marriage legal that a tions. years ago legal.” is still Both Esther and Ben Jarvison are It is often assumed without discussion subr ject Navajo regarding Nation laws mar that, arising in cases on an Indian courts riage and domestic relations. Because do State, Reservation within the substantive mestic relations are considered controlling law of the such State being Tribe as at the core of sover situations. Louis Francisco, eignty, In re Rep. Indian L. (D.N.M.1999). F.Supp.2d 1209-10 1989),4 we conclude that Na However, Nation re- because vajo law is the appropriate law under sovereign authority regulate tains do- which to evaluate of the mar laws, including marriage mestic relations Montana, riage. 565, See 450 U.S. 101 subjects, Navajo of its Indian law is dis- S.Ct. v. Sockey, Morris 170 599 F.2d positive validity marriage as to the (10th Cir.1948) (holding that tribal Indians question. in Montana v. See United domiciled within the territorial limits of an States, 544, 564, 1245, 450 U.S. Indian Territory nation in Indian and who (1981) (“Indian 67 L.Ed.2d 493 tribes re- marriage consummated a divorce ac tain their power inherent to determine cordance with tribal custom be membership, regulate tribal domestic by fore such customs had superceded been members, among pre- relations and to law, by other were the.legal bound effect members”); scribe rules of inheritance for customs); given to such see also Beller v. Martinez, Santa Clara Pueblo v. States, (D.N.M. 221 F.R.D. United 679 49, 55-56, 1670, S.Ct. 56 L.Ed.2d 106 98 2003) (determining validity Navajo of a (1978) (“Although longer possessed no of couple’s marriage by examining required sovereignty, they the full attributes of re- common marriage elements of law separate people, power main a with the of law). Navajo regulating their internal and social rela- tions.”); v. 55 Cheromiah B (D.N.M.1999) (exam- 1295, F.Supp.2d Navajo currently recognizes law multi- ining sovereignty by retained Indian ple ways marriage. to establish a valid It place tribes and law of the Federal recognizes those contract- both case); Torts Claims Act Fi- Jim CIT (if Navajo ed outside the Reservation 362, Corp., nancial Services 87 N.M. contracted), by the place laws of the where (N.M.1975) (recognizing P.2d and those within the Reservation under Navajo by laws of the Tribe are entitled Navajo requirements of Title 9 of the full Federal law to faith and credit recognizes Nation Code. Code both courts of New Mexico because the marriage. traditional and common law (1993).5 §§ “territory” meaning Nation is a within the Code tit: 3 and (NNC) provides: http:// 5. Code Available www.tribalresourcecen- Navaho ter.org/opinions/opfolder/1989. NANN. "Validity generally. Marriages A. contracted 0000013.htm visited on available in the Clerk of Court’s case seemingly language clear Despite the marriage in this ease alleged Because Resolution, fifty-year period, subsequent than a spans more understanding of the evolution proper interpreted the Resolution decisions common-law on traditional and law “directo- requirement the license making required to resolve mandatory, court de- ry” than rather n marriage. Járvisons’ subsequent Tribal Council cisions validity of recognized the Resolutions tradition,' of a celebration Under unlicensed traditional and common both ceremony and the traditional This conflict be- marriages. apparent community knowledge thereof the desire to formalize create a valid tween were sufficient to re- license or other documenta a license and the desire requiring A unnecessary. In re Francis concerning tion was spect tribal custom and belief (“After co, [partic L. Rep.'6113 16 Indian marriage6 reflects the tension Navajo wedding ipating] necessity proving between do not obtain ceremony, couples some state,7 riage in the modern bureaucratic because, traditionally, marriage licenses incorpo- Navajo law’s commitment to com performance of Navajo tradition as a source of law. rate union.”); see also pletely validates Navajo Board Election See Bennett v. Evolving Indig Lopez, Antoinette Sedillo No. A-CV-26-90 Supervisors, Navajo Marriage-Cultural enous Law: 1990) fundamental (holding Challenges, Traditions and Modern part “higher are customs and traditions (2000). L. Comp. Ariz. J. Int’l & law”);8 Navajo Tribal Council Res. CAP- governed by marriages, have been 1980) (Apr. (recognizing difficul- 36-80 1940 when the Tribal tribal statute since ty obtaining government benefits requiring Na passed Council a Resolution by inability to caused validate traditional vajo desiring marry in a tradi couples to marriages). li tional to obtain In the Tribal Council validated 1944 293; Navajo at Lopez, supra cense. See by (June preexisting marriages recognized 3, Tribal Council Res. CJ-2-40 1940) community though accompanied even overwhelming (recognizing-that church, state, by or Tribal custom ceremo- Navajo number of who have not been custom). Navajo Tribal by ny. tribal See Unnumbered school are married (as Navajo Country ions/opfolder/1988. are valid NANN.0000001.htm outside of Indian 2005, 3,May Country by and available in the Navajo if visited on within Indian file). case place Clerk of Court’s laws where contracted. B. Mar- riages may Navajo be contracted Indi- within Country by meeting requirements of 9 Navajo require- 7. The inclusion of license §§ NNC 3 and 4.” response to difficul- ment was established by attempt- experienced tribal ties members government pensions rights to establish Navajo society places great 6.“Traditional im- Security and survivor’s benefits under Social portance A upon the institution of compensation programs. Na- and other Navajo marriage, when consum- 30, (Apr. vajo Res. CAP-36-80 Tribal Council according prescribed mated to a elaborate 1980). ritual, by 'Holy to be is believed blessed blessing People.’ that the mar- This ensures stable, http:// riage harmony, perpet- www.tribalresourcecen- will be 8. Available Murphy, Navajo ter.org/opinions/opfolderll990. NANN. ual.” 6 10, 1988). visited on Rptr. Also available at: 0000016.htm www.tribalresourcecenter.org/opin- in the Clerk of Court’s case http:// available 18, amending (July “any Res. CJ-2-40 Council contracted tribal by custom 1944); Francisco, In 31, re 16 Indian Law 1954, January after may not be validat Navajo Code, Rep. see also tit. 9 court, ed the tribal but is (the § 8 1944 amendment the precur- a common marriage.” law In Marriage re 8).§ current Recognizing sor Ketchum, (Na 102, 2 Navajo Rptr. Navajo couples marry had continued to vajo Ct.App.1979).10 The court’s In re ceremonies, through unlicensed traditional opinion Ketchum requirements listed the in 1954 adopted the Tribal Council a reso- (1) aof common law marriage as: present 31, validating pre-January lution all wife; (2) consent to be husband and actual marriages compli- were out of (3) cohabitation; and actual holding out to ance with earlier Tribal Council community to be married. Lowery, requiring resolutions a license. David L. 405-06; Ketchum, supra at In re Lowery, Developing a Tribal Common 102, Rptr. citing 104-105 Kelly v. Metro Law Jurisprudence: Navajo Experi- Co., politan Ins. 352 F.Supp. 270 Life ence, 1969-1992, 18 Am. Indian L.Rev. (S.D.N.Y.1972) (listing essential features 379, (1993); Francisco, In re 16 Indi- of common marriage), and Meister v. 6113; Navajo an L. Rep. Tribal Council (6 Moore, Otto) 76, 24 L.Ed. 826 (Feb. 1954) ((codified Res. CF-2-54 (1878) (deciding that common law mar 9, 61, (1977)), Code tit. amended riage exists absent a statute to the con by Navajo Tribal Council Res. CAP-36-80 trary). 1980)). (Apr. In the Tribal the Tribal Council eliminated Council, recognizing frequent necessity the January 1954 cutoff date for the of documentary proof marriage, estab- validation of traditional marriages procedure lished a allowing those whose that had been entered into without licens- prior marriages were validated es, recognizing both that peo- resolution, petition for a formal ple marry had continued recognition of marriage through the Nava- ceremonies since 1954 and that the “law of jo courts. Tribal Council Res. validated problems has creatéd (Feb. 1957). CF-14-57 Although the hardships for numerous married Na- 1954 resolution requiring marriage licens- vajo 296; people.” Lopez, supra at Nava- passed problems es was to avoid in obtain- 1980). jo (Apr. Tribal Res. CAP-36-80 ing government dependents benefits for However, in an encourage effort to by encouraging tribal members to obtain move toward formalization and to ease the licenses, marriage Navajo courts subse- problem of keeping, accurate record quently “customary” marriages validated urged Navajo Tribal people Council January occurred after the Navajo marriage obtain Tribal pri- licenses marriages, date as “common law” thus marriage or to and record them within achieving the same Lowery, result. See 405; Daw, By eliminating three months. the cutoff supra at Marriage In re date, Navajo the Council allowed all traditional Rptr. (Navajo Ct.App.1969).9 validated, later, marriages years Navajo extending Ten to be feder- courts ac- knowledging language normally al benefits the 1954 afforded to married again couples Navajo Tribal Council Resolution held that couples to those “who were 9. Also available 10. available at: http:// http:// Also www.tribalresou.rce- www.tribalresour- center.org/opinions/opfolder/1969. cecenter.org/opinions/opfolderll NANN. 979. NANN. (as 3, 2005, May visited on and visited on and 0000001.htm 0000007.htm file). available in the Clerk of Court’s case available in the Clerk Court's case mar- proposed parties 1. The community being mar agreed have met spiri riage shall who considered themselves ried and Navajo marry; with in accordance tually united Lopez, tradition.” religious cultural and man ask parents 2. shall Council (citing at 296 Tribal supra her of the woman for parents 30, 1980)). (Apr. Res. CAP 36-80 marriage; hand the Na- Although Supreme bridegroom Court eat The bride 3. basket; institution of confirmed the vajo out of a sacred Nation cornmeal mush decision, in a 1988 law common ceremony at the 4. assembled Those Navajo Rptr. Murphy, 6 Navajo Nation v. happy give advice “Navajo tradition 10,11 1989 ruled groom; the bride recognize common-law do and culture may not be ex- may or 5. Gifts prior rulings all and overruled marriage,” changed; unli- to validate courts permitting officiating or conduct- person 6. The Navajo tradi- marriages which censed ceremony wedding the traditional occurred. Low- ceremony had not tional sign authorized to shall be 406; Marriage at In re ery, supra license, or riage Francisco, Rep. L. 16 Indian contracting parties establish E. 1989). declaring “Anglo-style” com- While fol- marriage, having the common-law contrary to marriages invalid as mon law lowing features: Francisco, in In re tradition parties intention of the 1. Present its re- Navajo Supreme Court reaffirmed wife; be husband validate under CAP 36-80 to sponsibility par- 2. Present consent between the with a marriages consecrated unlicensed wife'; ties to husband and Lowery, supra at ceremony. cohabitation; 3. Actual Francisco, 406; Rep. L. 16 Indian In re 1993, the at 299. Lopez, supra holding parties out of the 4. Actual rejected the Su- Tribal community Council to be married. within their Francisco holding In re preme Court’s Code, Against check- tit. 9 3. marriages and invalidating common law statutory background and historical ered common law explicitly included court’s assess the district determina- we Code, in the Code. tion in this case. (1993); Lopez, supra sec. C parties allows law Current through a traditional contract conceding later that New common-law mar recognizes valid common Mexico Navajo the Nation as follows: jurisdictions, govern within other the riages from that the district initially in a contends contracting parties engage ment D. The that a erred when determined Navajo wedding ceremony court traditional Jarvi marriage existed between the substantially the follow- valid have which shall New Mexico law does sons because ing features: Mwphy, Navajo Rptr. at 13. recognized marriage. mar of Murphy, the court that 11. In http://www.tribalresource- Navajo important aspect cul Also riage an of available was cen.ter.org/opinions/opfolder/1988. NANN. legal the doctrine of ture that 2005, visited on by Navajo society's justified in 0000001.htm privilege was of Court’s harmony sanctity . available in the Clerk case preserving the terest in common law recognize marriage. We re- that a “[is] traditional marriage under Na- ject government’s argument the first vajo Although law?” government the Additionally, the reasons stated above. makes of much the fact that Esther did not the contends there that testify to the exact requirements outlined support insufficient evidence to the district Navajo the provision, Code the statute court’s conclusion that the Jarvisons had a itself requires only that couple the “engage traditional ceremonial under the Navajo a traditional wedding ceremony Navajo Moreover, Code. the Jarvi- because which shall have substantially the follow- completed procedure sons had not the un- ing ....” Navajo Code, features tit. 9 Navajo der law to validate a traditional or added).. § 3D (emphasis Esther’s testimo- common law ar- ny arising the inferences therefrom gues that their was invalid. support the district court’s that conclusion a Navajo valid traditional marriage cere- In evaluating government’s conten mony occurred crediting “due re- tions, we observe that the district court gard to the district opportunity court’s produced could have a more robust order judge credibility.” Manning, witness detailing findings its of fact and evidentia- law, F.3d at 813. Navajo Under such an ry similar to the findings basis of detailed unlicensed traditional marriage occurring fact and conclusions of law in Beller v. prior to Navajo 1954was valid. (D.N.M. See Tribal F.R.D. 679 CF-2-54, Council 2003). Nonetheless, Res. Feb. see on our review of the Code, also record, 9 3D. we conclude that evidence is record sufficient to a establish Review of the evidence marriage between the Jarvisons. See supports record further the conclusion that Taylor, United States v. 97 F.3d the Jarvisons’ ceremony would be consid- (10th Cir.1996) (holding despite that ered valid under In law. explain- trial specific court’s failure to make factual concerning records findings, appellate court is free to af Jarvisons, Peshlakai, Ms. Gertrude firm any grounds on for which there is statistics technician from the Na- permit sufficient record to conclusions tion, recognized testified the Tribe law). marriages many of elderly Navajos case, who were married having Esther testified to traditional ceremo- nies in married Jarvison in a the forties and fifties who often did ceremony not have Coyote on June 1953 at their validated by Can- yon within the Tribe either as Reservation. She particular identified the medicine as common-law man performed ceremony. who recognizing She the internal on inconsistencies yes Records,12 answered when the court asked her Peshlakai testified record listed "Esther Jarvison” as Navajo society dition and law. Because matrilineal, any "Jarvison’s wife” but did not list informa- traditionally, matrilocal and type marriage. tion as the date or Al- father and children live with the mother’s though family, other "belong” inac- are children said to record, listing curacies Apache existed Republic such mother's clan. Na- Co., all of Jarvison's children as Rptr. those tional Insurance 3 Nav. Life (1982). http://www.tri- and Jarvison when some were of Jarvi- those 252 Also available at: daughter, merely son Esther's it held that balresourcecenter.org/opinions/opfolder/1982. (as conclusively because May an official record did not visited on NANN.0000059.htm "marriage,” establish their it did not mean and available in the Clerk of Court’s file). that were not married tra- case under 1230 above, the As Navajo law. noted to her census records indicated

that ex- Resolution Navajo Tribal Council tra- have had a might “the that individual traditional unlicensed plicitly to some- validated wedding.” Her answers ditional to 1954. Nava- performed prior counsel .are questions by what tortured CF-2-54, Feb. Res. jo Tribal Council to our evaluation: relevant (cid:127) 1954. “Okay, Question counsel: by defense mean, then, in that And what would Additionally, Navajo requires recognizing

terms at least tribe marriage must be tribal a traditional that context of wife that term of if even by formal divorce terminated a real or not there’s whether recorded or validated. marriage is not sense? What riage, in a traditional Marriage Matter Validation In the mean to me?” does that of of Slowman, Navajo Rptr. Ct. they had “That means Peshlakai: Matter Document App.1977);13 In wedding.” traditional Slim, Navajo Rptr. Marriage ing the you “And Counsel: does— Defense Ct.1982);14 see also (Crownpoint D. But before. used term ‘elderlies’ (“No (1993)' Code, § tit. 9 forties and prevalent custom, who by Tribal person, married who people fifties that on occasion shall be free to have been divorced claims in a sense were married as certificate of divorce remarry until a did not obtain Navajo Reservation the Courts of been issued to actual- you paperwork call the what Nation.”); Resolution CJ- Tribal Council like it’s done license ly get 3^0, 1944. To the extent July now?” relationship that claims ‘Tes.” Peshlakai: a com daughter with Esther’s constituted tribe, it, I take “The Counsel: Defense marriage extinguishing Ben mon-law those, as quote, elderlies recognizes marriage, the lack of Esther’s traditional married, they?” don’t original ending divorce ‘Tes.” Peshlakai: argument. defeats this Thus, testimony from the the Tribe does witness establishes whole, Navajo Domestic Taken as “elderlies,” Esther and such as recognize validity of maintain Code takes care Jarvison, if the mar- married even Ben necessarily marriages that would not prior not or-licensed. riage is validated requirements for mar- current code meet longstanding Nava- riage.15 or vali- addition failure to license The Jarvisons’ Navajo Code jo and current does common law date their 1953 unvalidated tra- or being recognizing invalid unlicensed not result in their requiring Code portion of the http:// both at: 13. Also available www.tribal-insti- (as tute.org/opinions/1977.NANN.0000008.htm who wish to members in the and available visited on marry may maternal be from same not file). case Clerk of Court's clan, may biological paternal clan or affinity degree related the third within http:// Also www.tribal-insti- available specifically state that clans within certain htm tute.org/opinions/1982.NANN.0000060. shall not provisions of this subsection “the 3,May available in the visited on legally any marriages validity of affect the case Clerk Court's prior law.” validated under contracted and NNC, example, § 4 which 15. For Code, 9, 4(D) (E). marry generally, requirements to detail the marriages performed ditional times III when ostensibly required,16 licenses were The invites us to current not necessarily does create a new exception to spousal testi Thus, a license.17 require monial privilege akin to that recognized we ment’s contention that the Jarvisons’ mar- Bahe, United States v. 128 F.3d 1440 riage is invalid because did not have (10th Cir.1997). Bahe, we recognized their validated or licensed fails an exception to the marital 'communica Despite law. the district privilege tions voluntary for spousal testi specific court’s failure to make findings mony relating to child abuse within the fact underpinning its determination of a household. Federal courts recognize two valid marital privileges: sufficient evidence is in the the first is the testimo nial privilege record validating permits which Jarvisons’ one spouse to decline to purposes testify for the spousal against testimonial other during marriage; privilege. second is the marital confi

dential communications privilege, which ei spouse ther may also assert to prevent conceded at other mind, from argument, so, testifying oral to our properly confidential com munications during if made the case were remanded to the Trammel, 44-46, 100 445 U.S. at court, 906; S.Ct. could Jarvisons establish Bahe, 128 F.3d at see also the elements of common law marriage. Jaffee Redmond, U.S. proffer own in its mo (1996) 135 L.Ed.2d 337 (recognizing justifi tion reconsideration establishes that cation of marital testimonial privilege as and Jarvison cohabiting were from modified Trammel because it “furthers again from 2000 on the important public interest marital wards, including the date of alleged harmony).. In order to accept govern abuse in 2002 and the investiga criminal invitation, ment’s would required we be tion in 2003. The vital records and investi not only to exception create to the gative reports produced by govern spousal privilege testimonial cases ment show that Esther and Jarvison held abuse, child but excep also to create an wife, themselves out as husband and currently tion—not recognized by any fed Esther Jarvison testified under oath that eral allowing court to compel ad court— she Jarvison’s wife. Although it is verse testimony.” true that the burden establishing applicability privilege of a party is on the The district court in this case held seeking it, to assert Motley v. Marathon that Esther and Ben Jarvison “have a Co., (10th Oil 71 F.3d Cir.1995), that Esther Jarvison we conclude that standard was met here. wishes to invoke privilege against ad- portion (§ 3(D) Even within the Na- deals with traditional dealing riage). tion Code with validation of mar- riages granting jurisdiction Family required 17. "Licenses are not in order to es- Courts of the Nation and to the Peace- provisions tablish under the of Courts, upon Family maker referral from the Code, part,” Navajo 5(A), § tit. and failure Courts, "[mjarriages states that need not be return the license to the Office of church, state, solemnized cus- days Vital Records within "shall not affect tom as valid under Code, any marriage.” 3(D) Code, § part.” Navajo of this tit. 9, § 7B. compel to government’s motion of the to face testimony, pursuant spousal verse as testimony, was follows: that 445 U.S. v. United Trammel (1980).” L.Ed.2d S.Ct. you were Okay. When THE COURT: held specifically Trammel The Court in married? privi- alone has witness-spouse “the that 25—where? June THE WITNESS: adversely; the testify to to refuse lege No. When? THE COURT: to testi- compelled may neither witness be Tram- testifying.” from foreclosed fy nor 25,1953. June THE WITNESS: Bahe, mel, at 100 S.Ct. were where Okay. And THE COURT: the “Federal 1442. F.3d at you married? au- acknowledge the Evidence Rules of Canyon. Coyote THE WITNESS: to continue federal courts thority of the the Is that on of testimoni- development THE COURT: evolutionary the gov- trials criminal Reservation? in federal privileges al common law by the the principles erned Navajo Reservation. THE WITNESS: light in the ... may interpreted they you By whom THE COURT: were Trammel, 445 experience,” of reason and ried? 906(internal citations U.S. Oh, a John person, THE WITNESS: omitted), not consid- we do quotations and Venson. to exam- case appropriate the this to be er can holding in Trammel ine whether Navajo medicine Is he THE COURT: Accordingly, we be reexamined. or should man? to create request

reject Yes. THE WITNESS: AFFIRM. exception, and an new a tradi- Okay. Is that THE COURT: dissenting. ANDERSON, Judge, Circuit Navajo law? tional that the dis- majority opinion holds Yes. THE WITNESS: had that Esther correctly found trict court court then at 87-90. The Appellant’s App. prove entitlement met her burden enough “Okay. good That’s declared I be- Because testimony privilege. spousal Id. at When the me.” actually put majority fails to lieve Esther, the court sought to cross-examine burden, acknowl- fails that I’m “No, enough. I’ve heard responded, crippled the court district edge on her any further going to intrude to counter its effort gov- Id. The one witness marriage.” by refusing permit burden permitted to introduce ernment was Esther, mini- and ment cross-examine Navajo Tribe’s view unable to confirm lengthy of Jarvison’s significance mizes pur- the existence I re- daughter, Esther’s relationship with Jarvison, marriage of Esther ported spectfully dissent. essentially dis- although per- acknowledges that majority any event: view the witness’s regarded evidentiary privi- assert an seeking to son difference, my any make doesn’t establishing its [ I]t the burden lege bears procedure Co., this kind judgment, under Motley v. Marathon Oil applicability. married they’re Cir.1995). tribe thinks (10th whether How- 71 F.3d married, they are they If think or not. ever, testimo- the sum total relevant married they thought were Esther, invok- person ny presented man, nobody made a tribal medicine privilege it, a record of that doesn’t mean that already put everyone on notice that Esth- they’re not married. er’s testimony crucial, would be it was clearly prejudicial prohibit Id. at 95. ment from cross-examining her in order to

Thus, the court held that Esther probe her credibility. had carried her burden of proving entitle- ment to the spousal privilege because she Finally, I disagree with majority’s simply stated she had been married in a conclusion that totality of the evidence Navajo traditional ceremony, although no presented concerning the existence of a documentary clearly evidence supported valid marriage suffices to establish that the existence of that the marriage existed. The majority sum- majority attempts to bolster Esther’s marily that, dismisses the fact after cohab- otherwise testimony by bare-bones claim- iting with Esther for some years, twelve ing only evidence need show “sub- Esther, Jarvison then left began cohabit- stantial” compliance requirements with the ing with Esther’s daughter previ- from a Code for a valid tradi- ous and had four children with tional marriage. But testimony Esther’s daughter over a fifteen-year span of hardly shows even a substantial compli- , cohabitation. Esther and Jarvison’s “re- ance—all she stated was that she had been union” following that lengthy relationship married a man she said was a Navajo between Jarvison arid daughter Esther’s medicine man and that she it believed was has been sporadic, at best. The majority a traditional ceremony. aNot shred of concludes that “the lack of a divorce end- evidence was presented with respect to the original 1953 marriage defeats remaining requirements Navajo Code, argument” th[e] that the relationship with 9, § 3 for establishing performance Esther’s daughter constituted a common- of a wedding ceremony. law marriage extinguished which any prior Furthermore, the district severely marriage. Maj. Op. at 20. This could lead handicapped in its effort to absurd results —an allegedly valid mar- to rebut her assertion of the existence of a riage of short duration could followed valid marriage when it refused let the by thirty-year common law marriage, yet government cross-examine Esther. The the spouse from the first marriage could majority concedes that “the district court claim spousal testimonial privilege while should have allowed the Government to spouse common-law from the second cross-examine Esther on her claim of mar- relationship could not. majority riage” but then states that “its failure to willing to formalities, overlook the need for do so must be evaluated for prejudice after records, and documents when comes to considering totality of the evidence determining the creation of a marriage but presented on the marriage.” Maj. Op. at strictly such requirements enforces when 1224, n. 2. the majority While notes it comes to terminating a marriage. That the government was opportu- afforded the fails to take account of the realities of this nity present testimony witness whose case. I therefore respectfully dissent. was, quite simply, on whether inconclusive there was a between Esth- Jarvison, er and present proffer of what believed Esther’s establish, would the government was not afforded the opportunity to test Esther’s credibility. Since district court had

Case Details

Case Name: United States v. Jarvison

Court Name: Court of Appeals for the Tenth Circuit

Date Published: May 23, 2005

Citation: 409 F.3d 1221

Docket Number: 04-2093

Court Abbreviation: 10th Cir.