F I L E D

United States Court of Appeals

Tenth Circuit

May 23, 2005

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v.

BEN JARVISON,

Defendant - Appellee.

 No. 04-2093

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

Jarvison, is not validly married, the United States contests the district court’s
2

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

Jarvisons 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 Jarvison’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 Jarvison’s (“Esther”) refusal to testify

against Ben Jarvison (“Jarvison”) in a criminal case in which Jarvison 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
 

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

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. 
4

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
 

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

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

(...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

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 (10th Cir. 1998). Although we review legal

issues de novo, United States v. Kirk, 894 F.2d 1162, 1163 (10th 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. 
 

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

Id. at 813. 

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

the Jarvisons 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
8

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.
 

4

 Available at: http://www.tribalresourcecenter.org/opinions/opfolder/1989.

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

Court’s case file). 

9

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). 
 

5

 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

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 Marriage-
 

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

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 marriage6 reflects the tension between

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

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

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
 

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

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.
 

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

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
 

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).

15

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
16

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
17

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
18

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
 

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 Jarvison’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/1982.NANN. 0000059.htm

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

19

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
 

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/1982.NANN.

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

case file).

20

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
 

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.

21

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 Jarvisons’ marriage is invalid because they did not have their marriage
22

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 Jarvisons’ 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
23

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 Jarvison “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
24

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. 
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.
-2-

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 Jarvison, 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.

Id. at 95.

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
-3-

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

Jarvison, 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.
-4-

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

Jarvison’s “reunion” following that lengthy relationship between Jarvison 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.