PUBLISH 

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

UNITED STATES OF AMERICA, 

Plaintiff - Appellant, 

V. 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 23, 2005 

PATRICK FISHER 

Clerk 

No. 04-2093 

BEN JARVISON, 

Defendant - Appellee. 

Appeal from the United States District Court 

for the District of New Mexico 

(D.C. No. CR 04-0073) 

Marron Lee, Assistant United States Attorney (David C. Iglesias, United States 

Attorney with her on the brief), Albuquerque, New Mexico, for the PlaintiffAppellant. 

Robert J. Gorence, Robert J. Gorence & Associates, P.C., Albuquerque, New 

Mexico, for the Defendant-Appellee. 

Before KELLY, ANDERSON, and LUCERO, Circuit Judges. 

LUCERO, Circuit Judge. 

In this interlocutory appeal involving a claim that the defendant, Ben 

Jarvis on, is not validly married, the United States contests the district court's 

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exclusion of testimony on the basis of the spousal testimonial privilege. As part 

of the underlying child sexual abuse prosecution, the United States sought to 

compel the testimony of Esther Jarvison who they contend observed the abuse and 

could testify as to statements concerning the abuse made to her by both the 

defendant Ben Jarvison and the alleged victim. After determining that the 

J arvisons had a valid marriage, the district court denied the government's motion 

to compel Esther's testimony. On appeal, the government argues that the district 

court erred in refusing to compel Esther's testimony on the basis of the spousal 

testimonial privilege, and in the alternative invites us to create a new exception to 

the spousal testimonial privilege for child abuse cases. Exercising jurisdiction 

under 18 U.S.C. § 3731, we AFFIRM the district court's order denying the 

government's motion to compel Esther J arvison' s testimony and decline the 

government's invitation to create a new exception allowing courts to compel 

adverse spousal testimony in cases involving allegations of child abuse. 

I 

This appeal centers around Esther J arvison' s ("Esther") refusal to testify 

against Ben Jarvis on (" Jarvis on") in a criminal case in which J arvison is accused 

of sexually abusing their granddaughter, Jane Doe. After the government indicted 

Jarvison for aggravated sexual abuse of a minor child in Indian Country, it 

attempted to compel Esther to testify against Jarvison. Esther, an 85-year-old 

2 

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Navajo woman who speaks quite limited English, and Jarvison, who is 77 years 

old, are residents of the Navajo Indian Reservation and enrolled members of the 

Navajo Tribe. Jarvison also speaks only limited English, and communicates 

mostly in Navajo. The testimony proffered by the government involves 

statements allegedly made by Esther to Federal Bureau of Investigation ("FBI") 

and Navajo Police investigators in an untaped, English-language interview. The 

government contends that Esther stated that she observed the child touch 

Jarvison's penis "over his pants," that Jane Doe allegedly told Esther that Jarvison 

had touched her private parts, and that Jarvison told Esther that the child had 

touched him over the crotch of his pants and he had told her not to do so. 1 Esther 

denies that she made such statements. 

As part of its pretrial preparations, the government served Esther with a 

subpoena to compel testimony two days before a pretrial hearing in this case. 

During the hearing, Esther emphatically stated that she did not want to testify 

against her husband and that she and Jarvison had married in a traditional Navajo 

ceremony in Coyote Canyon within the Navajo Reservation on June 25, 1953. 

1 At the time of the hearing, Jane Doe's father was also being investigated for 

raping Jane Doe. This alleged crime, however, occurred outside the jurisdiction 

of the United States and was pending prosecutorial decision in the Eleventh 

Judicial District Attorney's Office in Gallup, New Mexico. The existence of this 

additional abuse allegation is relevant, however, in the current prosecution as it 

could potentially provide Jarvison's defense with an explanation for the sexual 

knowledge of the minor victim. 

3 

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The district court found that the Jarvisons had a valid marriage based on this 1953 

traditional Navajo ceremony, and concluded that the spousal testimonial privilege 

applied under Trammel v. United States, 445 U.S. 40 (1980). 

Before the district court, the government argued that the marriage was not 

valid because: ( 1) Esther had not testified to every element of a "traditional 

ceremony" under the Navajo Code; (2) the Jarvisons had not recorded the 

traditional marriage with the Navajo tribal government; and (3) an intervening 

relationship with Esther's daughter had extinguished any marriage. The 

government's proffer included proposed evidence that the Jarvisons lived together 

from 1953 until 1965, at which point Esther moved out upon Jarvison's 

commencement of a sexual relationship with Esther's daughter from a prior 

marriage. Jarvison had two children with Esther prior to 1965, and four children 

with the daughter over the next fifteen years. In 1980, the relationship with the 

daughter ended, and Esther moved back in with Jarvison. Over the ensuing years, 

Esther and Jarvison separated and reconciled multiple times, and in 2000 began to 

live together again on a full-time basis. The documents submitted by the 

government reflect that in 2002, when the alleged sexual abuse occurred, Esther 

was living with Jarvison and was still cohabiting with him in 2003 when 

interviewed by the FBI and Navajo Police about the alleged abuse. These FBI 

statements relied upon by the government state that "[Esther] JARVISON and 

4 

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BEN have been married for over 50 years." 

The court allowed the government to present a witness from the Navajo 

Vital Records Office to testify to certain records on Jarvison maintained by the 

Navajo Nation that stated "no" in the block marked "married," but did list Esther 

as Jarvison's "wife." These documents also listed all of Jarvison's children as 

Esther and Jarvison's. After the court denied its motion to compel Esther's 

testimony on the basis of the existence of a valid marriage and the spousal 

testimonial privilege under Trammel, the government requested reconsideration 

and moved to supplement the record with additional documentary evidence to 

show that no valid marriage had ever occurred. These two exhibits consisted of 

the two investigatory reports made in 2003. The court admitted the documents 

but found they contained nothing that would cause it to reexamine its conclusion 

that the Jarvisons were married and that spousal testimonial privilege applied. 2 

2 The government contends that the district court's denial of the opportunity to 

cross examine Esther on her marriage was prejudicial. Unless we are convinced 

that the ruling of the court was prejudicial, the trial court is the governor of the 

trial with the duty to assure its proper conduct and the limits of cross-examination 

necessarily lie within its discretion. See United States v. Begay, 144 F.3d 1336, 

1339 (10th Cir. 1998) (review of limitations on cross-examination of witnesses 

for abuse of discretion); United States v. Jackson, 482 F.2d 1167 (10th Cir. 1973) 

( exercise of discretion on extent of cross-examination should not be overruled 

unless we are convinced the court's ruling is prejudicial). Although the district 

court should have allowed the Government to cross-examine Esther on her claim 

of marriage, its failure to do so must be evaluated for prejudice after considering 

the totality of the evidence presented on the marriage. In addition to allowing the 

(continued ... ) 

5 

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This interlocutory appeal by the government followed. 

II 

When reviewing a district court decision to exclude evidence, we review 

the district court's decision for an abuse of discretion. United States v. 

Wittgenstein, 163 F .3d 1164, 1172 (I 0th Cir. 1998). Although we review legal 

issues de novo, United States v. Kirk, 894 F .2d 1162, 1163 (I 0th Cir. 1990), we 

must accept the court's factual findings unless we conclude they were clearly 

erroneous. Manning v. United States, 146 F.3d 808, 812 (10th Cir. 1998). A 

finding of fact is not clearly erroneous unless "it is without factual support in the 

record," or unless the court "after reviewing all the evidence, is left with a 

definite and firm conviction that the district court erred." Id. We view the 

evidence on appeal in the light most favorable to the district court's ruling, giving 

due regard to the district court's opportunity to judge witness credibility, and 

must uphold any district court finding that is permissible in light of the evidence. 

2( ... continued) 

government to present a witness and records from the Navajo Vital Records 

Office, the district court allowed the government to present a proffer of what they 

believed the evidence would show, as well as allowing the government to 

supplement the record in its motion for reconsideration. Although the court itself 

conducted the examination of Esther and limited the cross examination due to the 

witness's age and frailty, it provided the government with a full opportunity to 

call other witnesses and to present a proffer of what they believed Esther's 

testimony would establish. After evaluating the record, we are not convinced that 

the court's ruling under these circumstances was prejudicial. 

6 

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Id.at 813. 

The United States contends that the district court erred in determining that 

the Jarvi sons were married under traditional Navajo law, and that even if married, 

the marriage was a sham or moribund and was created solely to avoid testifying. 

The second argument - that the marriage was a sham or moribund and was created 

solely to avoid testifying - was not raised or argued below before the district 

court in either the government's original motion or motion to reconsider. 

Accordingly, we decline to address it for the first time on appeal. See Singleton 

v. Wulff, 428 U.S. 106, 120 (1976); In re Walker, 959 F.2d 894, 896 (10th Cir. 

1992). 3 

A 

Our analysis of the district court's conclusion that the Jarvisons had a valid 

marriage requires us first to examine what law would apply to the question of a 

marriage between two Navajo tribal members who live completely within the 

boundaries of the Navajo Reservation. The district court implicitly evaluated the 

3 The government's own evidence directly contradicts this argument. In the 

government's supplement to the record on its motion to reconsider, allowed by the 

district court, the FBI statement concerning Esther's interview on April 25, 2003 

reflects that long before any indication of a criminal prosecution, Esther told the 

investigating agent that she and the defendant had been "married for over 50 

years" and further in its motion for reconsideration, the government stated that 

Esther had been living with Jarvison since 2000. Even presuming the facts 

adduced by the government as true, the government makes no showing that would 

support a conclusion that the marriage was either a sham or moribund. 

7 

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marriage under Navajo law stating that: "The Court is of the opinion that a 

marriage legal in the Navajo Nation 50 years ago is still legal." It is often 

assumed without discussion by courts that, in cases arising on an Indian 

Reservation within a State, the substantive law of the State is controlling in such 

situations. Louis v. United States, 54 F.Supp. 2d 1207, 1209-10 (D.N.M. 1999). 

However, because the Navajo Nation retains sovereign authority to regulate 

domestic relations laws, including marriage of its Indian subjects, Navajo law is 

dispositive as to the validity of the marriage in question. See Montana v. United 

States, 450 U.S. 544, 564 (1981) ("Indian tribes retain their inherent power to 

determine tribal membership, to regulate domestic relations among members, and 

to prescribe rules of inheritance for members"); Santa Clara Pueblo v. Martinez, 

436 U.S. 49, 55-56 (1978) ("Although no longer possessed of the full attributes of 

sovereignty, they remain a separate people, with the power of regulating their 

internal and social relations."); Cheromiah v. United States, 55 F.Supp. 2d 1295, 

1305 (D.N.M. 1999) ( examining the sovereignty retained by Indian tribes and law 

of the place in Federal Torts Claims Act case); Jim v. CIT Financial Services 

Corp., 533 P .2d 751, 752 (N.M. 1975) (recognizing that laws of the Navajo Tribe 

are entitled by Federal law to full faith and credit in the courts of New Mexico 

because the Navajo Nation is a "territory" within the meaning of 28 U.S.C. § 

1738); Halwood v. Cowboy Auto Sales, Inc., 946 P.2d 1088, 1090 (N.M. App. 

8 

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1997) (same). The government assumes that New Mexico law is the applicable 

law by which to measure the validity of the marriage, but discusses Navajo law 

because New Mexico recognizes valid common law marriages from other 

jurisdictions. 

Both Esther and Ben Jarvison are subject to Navajo Nation laws regarding 

marriage and domestic relations. Because domestic relations are considered by 

the Tribe as being at the core of Navajo sovereignty, In re Francisco, 16 Indian L. 

Rep. 6113 (Navajo 1989), 4 we conclude that Navajo law is the appropriate law 

under which to evaluate the validity of the marriage. See Montana, 450 U.S. at 

565; Marris v. Sockey. 170 F.2d 599 (10th Cir. 1948) (holding that tribal Indians 

domiciled within the territorial limits of an Indian nation in Indian Territory and 

who consummated a marriage or divorce in accordance with recognized tribal 

custom before such customs had been superceded by other law, were bound by the 

legal effect given to such customs); see also Beller v. United States, 221 F.R.D. 

679 (D.N.M. 2003) (determining validity of a Navajo couple's marriage by 

examining required elements of common law marriage under Navajo law). 

4 Available at: http://www.tribalresourcecenter.org/opinions/opfolder/l 989. 

NANN.0000013.htm (as visited on May 3, 2005, and available in the Clerk of 

Court's case file). 

9 

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B 

Navajo law currently recognizes multiple ways to establish a valid 

marriage. It recognizes both those marriages contracted outside the Navajo 

Reservation (if valid by the laws of the place where contracted), and those within 

the Reservation under the requirements of Title 9 of the Navajo Nation Code. 

Navajo Code recognizes both traditional and common law marriage. Navajo Code 

tit. 9, § § 3 and 4 ( 1993 ). 5 Because the alleged marriage in this case spans more 

than a fifty-year period, a proper understanding of the evolution of Navajo law on 

traditional and common-law marriage is required to resolve the validity of the 

Jarvisons' marriage. 

Under Navajo tradition, celebration of a traditional marriage ceremony and 

the knowledge thereof by the community were sufficient to create a valid 

marriage. A marriage license or other documentation was unnecessary. See In re 

Francisco, 16 Indian L. Rep. 6113 ("After [participating] in the traditional Navajo 

wedding ceremony, some couples do not obtain marriage licenses because, 

traditionally, the performance of the ceremony completely validates the union."); 

see also Antoinette Sedillo Lopez, Evolving Indigenous Law: Navajo Marriage5 Navaho Code (NNC) tit. 9, § 1, provides: "Validity generally. A. Marriages 

contracted outside of Navajo Indian Country are valid within Navajo Indian 

Country if valid by the laws of the place where contracted. B. Marriages may be 

contracted within Navajo Indian Country by meeting the requirements of 9 NNC 

§§ 3 and 4." 

10 

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Cultural Traditions and Modern Challenges, 17 Ariz. J. Int'l & Comp. L. 283, 292 

(2000). Navajo marriages have been governed by tribal statute since 1940 when 

the Tribal Council passed a Resolution requiring Navajo couples desiring to marry 

in a traditional ceremony to obtain a marriage license. See Lopez, supra at 293; 

Navajo Tribal Council Res. CJ-2-40 (June 3, 1940) (recognizing that the 

overwhelming number of Navajo who have not been to school are married by 

tribal custom). Despite the seemingly clear language in this Resolution, 

subsequent Navajo court decisions interpreted the Resolution as making the 

license requirement "directory" rather than mandatory, and court decisions and 

subsequent Tribal Council Resolutions recognized the validity of both unlicensed 

traditional and common law marriages. This apparent conflict between the desire 

to formalize marriage by requiring a license and the desire to respect tribal 

custom and belief concerning traditional marriage 6 reflects the tension between 

the necessity of proving marriage in the modern bureaucratic state,7 and Navajo 

6 "Traditional Navajo society places great importance upon the institution of 

marriage. A traditional Navajo marriage, when consummated according to a 

prescribed elaborate ritual, is believed to be blessed by the 'Holy People.' This 

blessing ensures that the marriage will be stable, in harmony, and perpetual." 

Navajo Nation v. Murphy, 6 Navajo Rptr. 10, 13 (Navajo 1988). Also available 

at: http://www.tribalresourcecenter.org/ opinions/opfolder/ 1988 .NANN. 

0000001.htm (as visited on May 3, 2005, and available in the Clerk of Court's 

case file). 

7 The Navajo inclusion of a license requirement was established in response to 

difficulties experienced by tribal members attempting to establish rights to 

( continued ... ) 

11 

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law's commitment to incorporate Navajo tradition as a source of law. See 

Bennett v. Navajo Board of Election Supervisors, No. A-CV-26-90 (Navajo 1990) 

(holding that fundamental Navajo customs and traditions are part of "higher 

law"); 8 Navajo Tribal Council Res. CAP-36-80 (Apr. 30, 1980) (recognizing 

difficulty in obtaining government benefits caused by inability to validate 

traditional marriages). 

In 1944 the Tribal Council validated preexisting marriages recognized by 

the community even though not accompanied by church, state, or Tribal custom 

ceremony. See Unnumbered Navajo Tribal Council Res. amending CJ-2-40 (July 

18, 1944); In re Francisco, 16 Indian Law Rep. 6113; see also Navajo Code, tit. 9 

§ 8 (the 1944 amendment was the precursor to the current §8). Recognizing that 

Navajo couples had continued to marry through unlicensed traditional ceremonies, 

in 1954 the Tribal Council adopted a resolution validating all pre-January 31, 

1954 Navajo marriages that were out of compliance with earlier Navajo Tribal 

Council resolutions requiring a license. David L. Lowery, Developing a Tribal 

Common Law Jurisprudence: The Navajo Experience, 1969-1992, 18 Am. Indian 

7( ... continued) 

government pensions and survivor's benefits under Social Security and other 

compensation programs. See Navajo Tribal Council Res. CAP-36-80 (Apr. 30, 

1980). 

8 Available at: http://www.tribalresourcecenter.org/opinions/opfolder/1990. 

NANN.0000016.htm (as visited on May 3, 2005, and available in the Clerk of 

Court's case file). 

12 

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L. Rev. 379,405 (1993); In re Francisco, 16 Indian L. Rep. 6113; Navajo Tribal 

Council Res. CF-2-54 (Feb. 11, 1954) ((codified at Navajo Code tit. 9, § 61, 

( 1977), amended by Navajo Tribal Council Res. CAP-36-80 (Apr. 30, 1980)). In 

1957, the Tribal Council, recognizing the frequent necessity of documentary proof 

of marriage, established a procedure allowing those whose prior marriages were 

validated by the 1954 resolution, to petition for a formal recognition of marriage 

through the Navajo courts. Navajo Tribal Council Res. CF-14-57 (Feb. 4, 1957). 

Although the 1954 resolution requiring marriage licenses was passed to avoid 

problems in obtaining government benefits for dependents by encouraging tribal 

members to obtain marriage licenses, Navajo courts subsequently validated 

"customary" marriages that occurred after the January 31, 1954 date as "common 

law" marriages, thus achieving the same result. See Lowery, supra at 405; In re 

Marriage of Daw, 1 Navajo Rptr. 1, 3 (Navajo Ct. App. 1969).9 Ten years later, 

the Navajo courts acknowledging the language of the 1954 Tribal Council 

Resolution again held that "any marriage contracted by tribal custom after January 

31, 1954, may not be validated by the tribal court, but is recognized as a common 

law marriage." In re Marriage of Ketchum, 2 Navajo Rptr. 102, 105 (Navajo Ct. 

9 Also available at: http://www.tribalresourcecenter.org/opinions/opfolder/ 

1969.NANN.0000001.htm (as visited on May 3, 2005, and available in the Clerk 

of Court's case file). 

13 

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App. 1979). 10 The court's In re Ketchum opinion listed the requirements of a 

common law marriage as: ( 1) present consent to be husband and wife; (2) actual 

cohabitation; and (3) actual holding out to the community to be married. Lowery, 

supra at 405-06; In re Ketchum, 2 Navajo Rptr. 102, 104-105 citing Kelly v. 

Metropolitan Life Ins. Co., 352 F.Supp. 270 (S.D.N.Y. 1972) (listing essential 

features of common law marriage), and Meister v. Moore, 96 U.S. 76 (1878) 

( deciding that common law marriage exists absent a statute to the contrary). 

In 1980, the Tribal Council eliminated the January 31, 1954 cutoff date for 

the validation of traditional Navajo marriages that had been entered into without 

licenses, recognizing both that the Navajo people had continued to marry in 

traditional ceremonies since 1954 and that the "law of validated marriages has 

created problems and hardships for numerous married Navajo people." Lopez, 

supra at 296; Navajo Tribal Res. CAP-36-80 (Apr. 30, 1980). However, in an 

effort to encourage the move toward formalization and to ease the problem of 

accurate record keeping, the Tribal Council urged the Navajo people to obtain 

Navajo Tribal marriage licenses prior to marriage and record them within three 

months. By eliminating the cutoff date, the Council allowed all traditional 

marriages to be validated, extending federal benefits normally afforded to married 

10 Also available at: http://www.tribalresourcecenter.org/opinions/opfolder/ 

1979.NANN.0000007.htm (as visited on May 3, 2005, and available in the Clerk 

of Court's case file). 

14 

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couples to those Navajo couples "who were recognized in the community as being 

married and who considered themselves spiritually united in accordance with 

Navajo cultural and religious tradition." Lopez, supra at 296 (citing Navajo 

Tribal Council Res. CAP 36-80 (Apr. 30, 1980)). 

Although the Supreme Court of the Navajo Nation confirmed the institution 

of common law marriage in a 1988 decision, Navajo Nation v. Murphy. 6 Navajo 

Rptr. 10, 11 in 1989 it ruled that "Navajo tradition and culture do not recognize 

common-law marriage," and overruled all prior rulings permitting Navajo courts 

to validate unlicensed marriages in which a Navajo traditional ceremony had not 

occurred. Lowery, supra at 406; In re Marriage of Francisco, 16 Indian L. Rep. 

6113 (Navajo 1989). While declaring "Anglo-style" common law marriages 

invalid as contrary to Navajo tradition in In re Francisco, the Navajo Supreme 

Court reaffirmed its responsibility under CAP 36-80 to validate unlicensed 

marriages consecrated with a traditional ceremony. Lowery, supra at 406; In re 

Francisco, 16 Indian L. Rep. 6113; Lopez, supra at 299. In 1993, the Tribal 

Council rejected the Navajo Supreme Court's holding in In re Francisco 

11 In Murphy. the court recognized that marriage was an important aspect of 

Navajo culture and that the legal doctrine of spousal privilege was justified by 

Navajo society's interest in preserving the harmony and sanctity of marriage. 

Murphy. 6 Navajo Rptr. at 13. Also available at: http://www.tribalresourcecenter. 

org/ opinions/opfolder/1988.NANN.0000001.htm (as visited on May 3, 2005, and 

available in the Clerk of Court's case file). 

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invalidating common law marriages and explicitly included common law 

marriages in the Navajo Code. Navajo Nation Code, tit. 9, sec. 3 (1993); Lopez, 

supra at 299. 

Current Navajo law allows parties to contract marriage through a traditional 

ceremony or by common-law marriage within the Navajo Nation as follows: 

D. The contracting parties engage in a traditional Navajo wedding 

ceremony which shall have substantially the following features: 

1. The parties to the proposed marriage shall have met and 

agreed to marry; 

2. The parents of the man shall ask the parents of the woman 

for her hand in marriage; 

3. The bride and bridegroom eat cornmeal mush out of a 

sacred basket; 

4. Those assembled at the ceremony give advice for a happy 

marriage to the bride and groom; 

5. Gifts may or may not be exchanged; 

6. The person officiating or conducting the traditional 

wedding ceremony shall be authorized to sign the marriage 

license, or 

E. The contracting parties establish a common-law marriage, having 

the following features: 

1. Present intention of the parties to be husband and 

wife; 

2. Present consent between the parties to be husband 

and wife; 

3. Actual cohabitation; 

4. Actual holding out of the parties within their 

community to be married. 

Navajo Code, tit. 9 § 3. Against this checkered statutory and historical 

background we assess the district court's determination in this case. 

C 

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Although later conceding that New Mexico recognizes valid common law 

marriages from other jurisdictions, the government initially contends that the 

district court erred when it determined that a valid marriage existed between the 

Jarvisons because New Mexico law does not recognize common law marriage. 

We reject the government's first argument for the reasons stated above. 

Additionally, the government contends that there was insufficient evidence to 

support the district court's conclusion that the Jarvisons had a traditional 

ceremonial marriage under the Navajo Code. Moreover, because the Jarvisons 

had not completed the procedure under Navajo law to validate a traditional or 

common law marriage, the government argues that their marriage was invalid. 

In evaluating the government's contentions, we observe that the district 

court could have produced a more robust order detailing its findings of fact and 

evidentiary basis similar to the detailed findings of fact and conclusions of law in 

Beller v. United States, 221 F.R.D. 679 (D.N.M. 2003). Nonetheless, on our 

review of the record, we conclude that the evidence in the record is sufficient to 

establish a valid marriage between the Jarvisons. See United States v. Taylor. 97 

F.3d 1360, 1364 (10th Cir.1996) (holding that despite a trial court's failure to 

make specific factual findings, an appellate court is free to affirm on any grounds 

for which there is sufficient record to permit conclusions of law). 

In this case, Esther testified to having married Jarvison in a traditional 

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Navajo ceremony on June 25, 1953 at Coyote Canyon within the Navajo 

Reservation. She identified the particular Navajo medicine man who performed 

the ceremony. She answered yes when the court asked her "[is] that a traditional 

marriage under Navajo law?" Although the government makes much of the fact 

that Esther did not testify to the exact requirements outlined in the Navajo Code 

provision, the statute itself requires only that the couple "engage in a traditional 

Navajo wedding ceremony which shall have substantially the following features 

.... " Navajo Code, tit. 9 § 3D (emphasis added). Esther's testimony and the 

inferences arising therefrom support the district court's conclusion that a valid 

traditional Navajo marriage ceremony occurred in 1953, crediting "due regard to 

the district court's opportunity to judge witness credibility." Manning, 146 F.3d 

at 813. Under Navajo law, such an unlicensed traditional marriage occurring 

prior to 1954 was valid. See Navajo Tribal Council Res. CF-2-54, Feb. 11, 1954; 

see also Navajo Code, tit. 9 § 3D. 

Review of the government's evidence of record further supports the 

conclusion that the Jarvisons' ceremony would be considered valid under Navajo 

law. In explaining the Navajo Nation records concerning the Jarvisons, Ms. 

Gertrude Peshlakai, a statistics technician from the Navajo Nation, testified that 

the Tribe recognized the marriages of many of the elderly Navajos who were 

married in traditional ceremonies in the forties and fifties who often did not have 

18 

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their marriages validated by the Tribe either as a traditional ceremony or as a 

common-law marriage. Although recognizing the internal inconsistencies on the 

Navajo Records, 12 Peshlakai testified that the census records indicated to her that 

"the individual might have had a traditional wedding." Her answers to somewhat 

tortured questions by counsel are relevant to our evaluation: 

Question by defense counsel: "Okay, And what would that 

mean, then, in terms at least the tribe recognizing that term of 

wife in the context of whether or not there's a real marriage, in 

a traditional sense? What does that mean to me?" 

Peshlakai: "That means they had a traditional wedding." 

Defense Counsel: "And does - you used the term 'elderlies' 

before. But was it prevalent in the forties and fifties that on 

occasion people who were married in a traditional sense on the 

Navajo Reservation did not obtain what you call the paperwork 

to actually get a marriage license like it's done now?" 

Peshlakai: "Yes." 

Defense Counsel: "The tribe, I take it, recognizes those, 

quote, elderlies as married, don't they?" 

Peshlakai: "Yes." 

Thus, testimony from the government's witness establishes that the Tribe does 

12 The record listed "Esther Jarvison" as "Jarvison's wife" but did not list any 

information as to the date or type of marriage. Although the court recognized that 

other inaccuracies existed on the record, such as listing all of J arvison' s children 

as those of Esther and Jarvison when some were those of Jarvison and Esther's 

daughter, it held that merely because an official record did not conclusively 

establish their "marriage," it did not mean that they were not married under 

Navajo tradition and law. Because Navajo society is matrilocal and matrilineal, 

traditionally, the father and children live with the mother's family, children are 

said to "belong" to the mother's clan. See Apache v. Republic National Life 

Insurance Co., 3 Nav. Rptr. 250, 252 (1982). Also available at: 

http://www.tribalresourcecenter.org/opinions/opfolder/l 982.NANN.0000059.htm 

(as visited on May 3, 2005, and available in the Clerk of Court's case file). 

19 

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recognize "elderlies," such as Esther and Ben Jarvison, as married even if the 

marriage is not validated or licensed. 

The Jarvisons' failure to license or validate their 1953 traditional marriage 

does not result in their marriage being invalid under Navajo law. As noted above, 

the 1954 Navajo Tribal Council Resolution explicitly validated unlicensed 

traditional marriages performed prior to 1954. Navajo Tribal Council Res. CF-2-

54, Feb. 11, 1954. 

Additionally, Navajo law requires that a traditional tribal marriage must be 

terminated by formal divorce even if the marriage is not recorded or validated. 

See In the Matter of Validation of Marriage of Slowman, 1 Navajo Rptr. 142 

(Navajo Ct. App. 1977); 13 In the Matter of Documenting the Marriage of Slim, 3 

Navajo Rptr. 218 (Crownpoint D. Ct. 1982); 14 see also Navajo Code, tit. 9 § 407 

(1993) ("No person, married by Tribal custom, who claims to have been divorced 

shall be free to remarry until a certificate of divorce as been issued by the Courts 

of the Navajo Nation."); Tribal Council Resolution CJ-3-40, July 18, 1944. To 

the extent that the government claims that the relationship with Esther's daughter 

13 Also available at: http://www.tribal-institute.org/opinions/1977.NANN. 

0000008.htm (as visited on May 3, 2005, and available in the Clerk of Court's 

case file). 

14 Also available at: http://www.tribal-institute.org/opinions/l 982.NANN. 

0000060.htm (as visited on May 3, 2005, and available in the Clerk of Court's 

case file). 

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constituted a common-law marriage extinguishing Ben and Esther's traditional 

marriage, the lack of a divorce ending the original 1953 marriage defeats this 

argument. 

Taken as a whole, the Navajo Domestic Code takes care to maintain the 

validity of prior marriages that would not necessarily meet current code 

requirements for marriage. 15 In addition to longstanding Navajo common law and 

current Navajo Code recognizing unlicensed or unvalidated traditional marriages 

performed at times when licenses were ostensibly required, 16 current Navajo law 

does not necessarily require a license. 17 Thus, the government's contention that 

the J arvisons' marriage is invalid because they did not have their marriage 

15 For example, in § 4 of the NNC, which detail the requirements to marry 

generally, both portion of the Navajo Code requiring that Navajo Nation members 

who wish to marry may not be from the same maternal clan or biological paternal 

clan, or may not be related within the third degree of affinity within certain clans 

specifically state that "the provisions of this subsection shall not affect the 

validity of any marriages legally contracted and validated under prior law." 

Navajo Code, tit. 9, § 4(D) and (E). 

16 Even within the portion of the Navajo Nation Code dealing with validation 

of marriages and granting jurisdiction to the Family Courts of the Navajo Nation 

and to the Peacemaker Courts, upon referral from the Family Courts, states that 

"[m]arriages need not be solemnized by church, state, or Navajo custom ceremony 

to be recognized as valid under§ 3(D) of this part." Navajo Code, tit. 9, § 8 (§ 

3(D) deals with traditional Navajo marriage). 

17 "Licenses are not required in order to establish a marriage under the 

provisions of this part," Navajo Code, tit. 9, § 5(A), and failure to return the 

license to the Navajo Office of Vital Records within 30 days "shall not affect the 

validity of any marriage." Navajo Code, tit. 9, § 7B. 

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validated or licensed fails under Navajo law. Despite the district court's failure 

to make specific findings of fact underpinning its determination of a valid 

marriage, sufficient evidence is in the record validating the J arvisons' marriage 

for the purposes of the spousal testimonial privilege. 

The government also conceded at oral argument, to our mind, properly so, 

that if the case were remanded to the district court, the Jarvisons could establish 

the elements of common law marriage. The government's own proffer in its 

motion for reconsideration establishes that Esther and Jarvison were cohabiting 

from 1953 to 1980, and again from 2000 onwards, including the date of the 

alleged abuse in 2002 and the criminal investigation in 2003. The vital records 

and investigative reports produced by the government show that Esther and 

Jarvison held themselves out as husband and wife, and Esther Jarvison testified 

under oath that she was Jarvison's wife. Although it is true that the burden of 

establishing the applicability of a privilege is on the party seeking to assert it, 

Motley v. Marathon Oil Co., 71 F.3d 1547, 1550 (10th Cir. 1995), we conclude 

that standard was met here. 

III 

The government invites us to create a new exception to the spousal 

testimonial privilege akin to that we recognized in United States v. Bahe, 128 

F .3d 1440 (10th Cir. 1997). In Bahe, we recognized an exception to the marital 

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communications privilege for voluntary spousal testimony relating to child abuse 

within the household. Federal courts recognize two marital privileges: the first is 

the testimonial privilege which permits one spouse to decline to testify against the 

other during marriage; the second is the marital confidential communications 

privilege, which either spouse may assert to prevent the other from testifying to 

confidential communications made during marriage. See Trammel, 445 U.S. at 

44-46; Bahe, 128 F.3d at 1442; see also Jaffee v. Redmond, 518 U.S. 1, 11 

(1996) (recognizing justification of marital testimonial privilege as modified by 

Trammel because it "furthers the important public interest in marital harmony). 

In order to accept the government's invitation, we would be required not only to 

create an exception to the spousal testimonial privilege in cases of child abuse, 

but also to create an exception - not currently recognized by any federal court -

allowing a court to compel adverse spousal testimony. 

The district court in this case held that Esther and Ben J arvison "have a 

valid marriage and that Esther Jarvison wishes to invoke the privilege against 

adverse spousal testimony, pursuant to Trammel v. United States, 445 U.S. 40 

(1980)." The Court in Trammel specifically held that "the witness-spouse alone 

has a privilege to refuse to testify adversely; the witness may be neither 

compelled to testify nor foreclosed from testifying." Trammel, 445 U.S. at 53; 

Bahe, 128 F.3d at 1442. Although the "Federal Rules of Evidence acknowledge 

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the authority of the federal courts to continue the evolutionary development of 

testimonial privileges in federal criminal trials governed by the principles of the 

common law as they may be interpreted ... in the light of reason and 

experience," Trammel, 445 U.S. at 47(internal citations and quotations omitted), 

we do not consider this to be the appropriate case to examine whether the holding 

in Trammel can or should be reexamined. Accordingly, we reject the 

government's request to create an new exception, and AFFIRM. 

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No. 04-2093, United States v. Jarvison 

ANDERSON, Circuit Judge, dissenting: 

The majority opinion holds that the district court correctly found that 

Esther had met her burden to prove entitlement to the spousal testimony privilege. 

Because I believe that the majority fails to actually put Esther to that burden, fails 

to acknowledge that the district court crippled the government in its effort to 

counter that burden by refusing to permit the government to cross-examine Esther, 

and minimizes the significance of Jarvison 's lengthy relationship with Esther's 

daughter, I respectfully dissent. 

The majority acknowledges that the person seeking to assert an evidentiary 

privilege bears the burden of establishing its applicability. Motley v. Marathon 

Oil Co., 71 F.3d 1547, 1550 (10th Cir. 1995). However, the sum total of the 

relevant testimony presented by Esther, the person invoking the spousal testimony 

privilege in the face of the government's motion to compel that testimony, was as 

follows: 

THE COURT: Okay. When were you married? 

THE WITNESS: June 25 - where? 

THE COURT: No. When? 

THE WITNESS: June 25, 1953. 

THE COURT: Okay. And where were you married? 

THE WITNESS: Coyote Canyon. 

THE COURT: Is that on the Navajo Reservation? 

THE WITNESS: Navajo Reservation. 

THE COURT: By whom were you married? 

THE WITNESS: Oh, a person, John Venson. 

Appellate Case: 04-2093 Document: 010110642428 Date Filed: 05/23/2005 Page: 25
THE COURT: Is he a Navajo medicine man? 

THE WITNESS: Yes. 

THE COURT: Okay. Is that a traditional marriage under Navajo 

law? 

THE WITNESS: Yes. 

Appellant's App. at 87-90. The court then declared "Okay. That's good enough 

for me." Id. at 90. When the government sought to cross-examine Esther, the 

court responded, "No, I've heard enough. I'm not going to intrude any further on 

her marriage." Id. The one witness the government was permitted to introduce 

was unable to confirm the Navajo Tribe's view of the existence and validity of the 

purported marriage of Esther and J arvison, although the district court essentially 

disregarded the witness's view in any event: 

[I]t doesn't make any difference, in my judgment, under this kind of 

procedure whether the tribe thinks they're married or not. If they 

think they are married, and they thought they were married by a tribal 

medicine man, and nobody made a record of it, that doesn't mean 

that they're not married. 

li:L_at95. 

Thus, the district court held that Esther had carried her burden of proving 

entitlement to the spousal privilege because she simply stated she had been 

married in a Navajo traditional ceremony, although no documentary evidence 

clearly supported the existence and validity of that marriage. The majority 

attempts to bolster Esther's otherwise bare-bones testimony by claiming that the 

evidence need only show "substantial" compliance with the requirements under 

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the Navajo Code for a valid traditional marriage. But Esther's testimony hardly 

shows even a substantial compliance-all she stated was that she had been 

married by a man she said was a Navajo medicine man and that she believed it 

was a traditional ceremony. Not a shred of evidence was presented with respect 

to the remaining requirements of Navajo Code, tit. 9, § 3 for establishing the 

performance of a traditional Navajo wedding ceremony. 

Furthermore, the district court severely handicapped the government in its 

effort to rebut her assertion of the existence of a valid marriage when it refused to 

let the government cross-examine Esther. The majority concedes that "the district 

court should have allowed the Government to cross-examine Esther on her claim 

of marriage" but then states that "its failure to do so must be evaluated for 

prejudice after considering the totality of the evidence presented on the 

marriage." Maj. Op. at 5-6, n.2. While the majority notes that the government 

was afforded the opportunity to present a witness whose testimony was, quite 

simply, inconclusive on whether there was a valid marriage between Esther and 

Jarvis on, and to present a proffer of what they believed Esther's testimony would 

establish, the government was not afforded the opportunity to test Esther's 

credibility. Since the district court had already put everyone on notice that 

Esther's testimony would be crucial, it was clearly prejudicial to prohibit the 

government from cross-examining her in order to probe her credibility. 

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Finally, I disagree with the majority's conclusion that the totality of the 

evidence presented concerning the existence of a valid marriage suffices to 

establish that the marriage existed. The majority summarily dismisses the fact 

that, after cohabiting with Esther for some twelve years, Jarvison then left Esther, 

began cohabiting with Esther's daughter from a previous marriage, and had four 

children with the daughter over a fifteen-year span of cohabitation. Esther and 

Jarvi son's "reunion" following that lengthy relationship between Jarvi son and 

Esther's daughter has been sporadic, at best. The majority concludes that "the 

lack of a divorce ending the original 1953 marriage defeats th[ e] argument" that 

the relationship with Esther's daughter constituted a common-law marriage which 

extinguished any prior marriage. Maj. Op. at 20. This could lead to absurd 

results-an allegedly valid marriage of short duration could be followed by a 

thirty-year common law marriage, yet the spouse from the first marriage could 

claim a spousal testimonial privilege while the common-law spouse from the 

second relationship could not. The majority is willing to overlook the need for 

formalities, records, and documents when it comes to determining the creation of 

a marriage but strictly enforces such requirements when it comes to terminating a 

marriage. That fails to take account of the realities of this case. I therefore 

respectfully dissent. 

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