concurring opinion.
I concur with the holding of the majority. I agree that the statute was unevenly enforced. I write separately to express my belief that the requirements of n N.N.C. §8A(i) are clear on its face.
*255The Appellant has asked this court to determine whether the residency-requirement set out at ii N.N.C. §8(A) should include the Navajo common law definition for residency and attempts to persuade this Court that his name should be placed on the ballot as a candidate. Appellant argues that he meets the residency requirement based on a Navajo Common law belief that one is a resident of the place where his umbilical cord is buried. The Appellant further contends that the Navajo Nation Council did not visit the issue of common law residency and that this Court should apply common law as common law is controlling within the Navajo Nation.
It must first be made clear that prior to the 2002 election, the Board of Election Supervisors was a quasi-judicial body and heard election related administrative complaints filed pursuant to the Navajo Election Code. However, this authority to hear election complaints was transferred to the Office of Hearings in appeals on January 24,2001. (See Navajo Nation Resolution CJA-05-01). The certification requirements that the Navajo Election Administration is required to apply in this 2002 election is being applied for the first time. It is understandable that there may be confusion when applying new laws and it is conceivable that mistakes may be made.
The Navajo Nation Council was cognizant that challenges would be made and set out a way to redress the complaints. Pursuant to n N.N.C. §24, “... Appeal may be made by either party to the Navajo Nation Supreme Court within ten (10) days of the date of decision. The Supreme Court shall review the appeal no later than fifteen (15) days from the date of filing. Review by the Supreme Court shall be limited to whether or not the decision of the Office of Hearings and Appeals (OHA) is sustained bp sufficient evidence in the record.” (emphasis added). The OHA upheld the Navajo Nation Election Administration’s (NNEA) decision for the following reasons: 1) the Appellant listed 105 Martennili Drive, Gallup, New Mexico and P.O. Box 2275, Window Rock, Arizona, on his candidacy application as his address; 2) the Appellant’s Candidate’s Voter Registration Verification indicated his Gallup, New Mexico address; 3) the Appellant testified that he has a home in Gallup, New Mexico and a hogan at Churchrock, New Mexico which he uses for ceremonial purposes; 4) the Appellant has a grazing permit in Churchrock, New Mexico; 5) the Appellant does not own a homesite lease; 6) the Appellant does not have actual residence in Churchrock, New Mexico; and 7) the Appellant’s witnesses testified that he lives in Gallup, New Mexico. This Court is thereby limited to review the evidence in the record. However, a de novo review will result if there is a question of law. Here the appellant argues that Navajo common law recognized his residence as Churchrock, New Mexico, and the OHA erred by not applying Navajo Common law. Should the Navajo common law definition of residency be applied?
Contrary to the Appellant’s arguments, it is evident from the minutes of the Navajo Nation Council, specifically the minutes of April 6, r990, the issue of *256“residency” and “continually present” was debated extensively. The legislative history shows that the legislature had debated the issue of the residency of a candidate and made a conscious decision not to adopt a Navajo common law residency. (See pages 3-7,11 and 43 of the April 6,1990 minutes of the Navajo Nation Council). The law that the Council voted to adopt is the following definition:
A. Qualification for President and Vice-President Are:
1. Must have permanent residence and have been continually physically present within the Navajo Nation as defined in 7 N.N.C. §254 for at least three years prior to the time of election, n N.N.C. §8(A).
I interpret n N.N.C. §8(A) to be clear on its face. However, the majority are convinced that the requirement is vague and refer us to the definition of “continually present” at n N.N.C. §2(G). “Continually present” is defined in the statute as “[b]eing actually physically present within the Navajo Nation or living on Navajo Country in a fixed and permanent home without any significant interruption. An extended absence from Navajo Country in the course of employment or pursuit of a trade or business for the purposes of attending school and serving in the military service, is not significant interruption.”
I interpret n N.N.C. §8(A) to be a two-prong test. First, the presidential candidate must have a permanent residence within the Navajo Nation as defined in 7 N.N.C. §254. Second, the presidential candidate must have been continually physically present within the Navajo Nation three years prior to the election. Again, the majority believes that “ [b]eing actually physically present within the Navajo Nation or living on Navajo Country in a fixed and permanent home without any significant interruption” is vague. However, the Appellant did not qualify for a slot on the ballot for presidential candidate because he met the first clause of the second prong test.
The majority also entertains the idea that maybe a candidate’s absence from the Navajo Nation can be justified due to a family member’s absence from the Navajo Nation for purposes of employment, military service or school attendance. I differ on the majority’s decision to entertain the idea that the “continually present” definition as set out at 11 N.N.C. §2(G) may exempt a candidate from meeting the continual presence requirement due to family members residing off the Navajo Nation as defined in 7 N.N.C. §254. The election laws are clearly about the candidate’s qualifications to run for office. There is no evidence that the Navajo Nation Council entertained the idea that one qualify as a resident when they live off the Navajo Nation due to family members’ circumstances.
I am even more convinced that the intent of the legislature to require that a candidate for the president’s position be a resident of the Navajo Nation as the qualification for the Navajo Nation President is also spelled out in Title Two of *257the Navajo Nation Code which deals with the Navajo Nation Government. 2 N.N.C. § 1003(B) states:
No person shall serve as President or as Vice-President of the Navajo Nation unless he/she has continually, during the last three years before the time of election been physically present within the Navajo Nation. The “Navajo Nation” is defined at 7 N.N.C. §254.
Furthermore, prior to the amendments of Title Two of the Navajo Nation Code, 2 N.N.C. §1004 was codified at §283 and read as such:
(b) No person shall serve as Chairman or as Vice-Chairman of the Navajo Tribal Council unless he has during the last three years before the time of election lived on the land of the Navajos, that is, on tribal or allotted land within the boundaries of the Navajo Reservation, or on land of a restricted allotment or homestead, or on purchased or exchanged land or on public domain outside of said exterior boundaries, or in the immediate vicinity of the reservation, and in the case of such non-resident that he has participated continuously and actively in the affairs of the Tribe for the three years prior to his taking office. The Tribal Council shall, by majority vote, decide whether such continuous active participation in Tribal affairs on the part of the candidate has taken place and shall so certify, (my emphasis).
The Navajo Nation Council by resolution changed the above definition in CD-68-89 when it adopted the amendments. The amendments make clear that the language “or in the immediate vicinity of the reservation,” and “in the case of such non-resident that he has participated continuously and actively in the affairs of the Tribe” were struck.
Again we could debate whether the above definition is vague but as both 11 N.N.C. and 2 N.N.C. refer us to the same definition set out at 7 N.N.C. §254, we need not discuss 2 N.N.C. §1004 any further. However, we are led to the discussion of the definition of territorial jurisdiction as defined in 7 N.N.C. §254. “Navajo Nation” is defined as:
The territorial jurisdiction of the Navajo Nation shall extend to Navajo Indian Country, defined as all land within the exterior boundaries of the Navajo Indian Reservation or of the Eastern Agency, all land within the limits of dependent Navajo Indian communities, all Navajo Indian allotments and all other land held in trust for, owned in fee by, or leased by the United States to the Navajo Nation or any Band of Navajo Indians.
Again, there was debate by the legislature in defining “Navajo Nation” as evidenced by the minutes of Navajo Nation Council April 6,1990 amendments as well as the legislative history of 7 N.N.C. §254.
Therefore, applying the standard of review as set out in 11 N.N.C. §24(G) as amended and adopted by the Navajo Nation Intergovernmental Relations *258Committee on October io, 2000, requires this Court to look at the sufficiency of the evidence. Based on the record, there is sufficient evidence to show that the Appellant is not a resident of the Navajo Nation as required by 11 N.N.C. §8(A), and as defined in by 7 N.N.C. §254
However, the issue this Court addresses is whether Appellant Edward T. Begay’s non-certification of his application for the Navajo Nation president candidacy was denied as a result of the unequal application of the Navajo Nation election laws. It must be made clear that this Court’s decision to allow the Appellant on the ballot is not because he met the residency requirement but because the candidates were not treated similarly in the process of applying and determining residency of the candidates. The guarantee of substantive due process assures that the law will be fair and reasonable, not arbitrary. Equal protection review is triggered where persons similarly situated are treated differently.
As discussed in the majority opinion, it is not exactly clear what process the Navajo Election Administration applied in determining candidacy. However, if the election laws were applied equally as set out in 11 N.N.C. §8(A), the NNEA should have disqualified all the candidates who do not reside within the Navajo Nation as defined by 7 N.N.C. §254. In essence, this would mean that candidates, Curley, Badaanii, and Begay would not qualify under the first prong of n NNC §8(A) as they are not residents of the Navajo Nation as defined by 7 N.N.C. §254. If the election laws were applied strictly and equally, of the candidates in issue, the only candidate who would have qualified as a presidential candidate is Yellowhorse, the NNEA, upon determining that she met the first prong of the test for determining residency would then determine why she has not been continually present within the Navajo Nation for the last three years. Yellowhorse met the “continually present” exception as her extended absence from Navajo Country is due to purposes of attending school at the University of New Mexico-Gallup Branch.