Council limits court use of Fundamental Law

By Jason Begay
Navajo Times

WINDOW ROCK, Feb. 5, 2010

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Diné Fundamental Law, the traditional cultural values cited as guiding principles in the Navajo Nation Code, can only be used in peacemaker court proceedings, according to a bill passed by the tribal council during its winter session.

The bill would prohibit the Office of Hearings and Appeals, district courts, and even the Navajo Nation Supreme Court from citing fundamental law as a basis for their rulings.

The council's move follows recent decisions by a hearing officer and the Supreme Court that went against the council's wishes in the matter of putting council reduction to a vote.

According to the bill, sponsored by Raymond Joe (Blue Gap/Tachee/Whippoorwill) Navajo Nation courts would be prohibited from using Fundamental Law in standard cases. The courts would have to rely solely on the statutes passed by the council.

Fundamental Law could still be used in peacemaking court, according to the bill.

"The primary purpose (of Fundamental Law) was to preserve, protect and enhance the life way," Joe said during his presentation. "Instead there's this growing tension" because of how the law has been used in court findings.

During the summer session in July, Joe proposed deleting the Fundamental Law entirely from the code. The council requested he take the issue to the public before bringing it back. Instead, Joe revised his plan, which now leaves the law in the books, but limits its use.

The council approved Joe's revised bill 56-17. It is now in the hands of President Joe Shirley Jr., who can sign it, veto it, or let it become law by doing nothing within 10 days of receiving it.

Twice in the past year, Fundamental Law has been cited as the basis for allowing Shirley's ballot initiative to reduce the council's membership to go before voters.

In June, Judge Carol Perry, acting as an administrative hearing officer appointed specially by the Supreme Court, cited Fundamental Law in overturning the election office decision to disqualify the initiative.

Fundamental Law states that the people have a right to participate in the formation of their government, she ruled. The Navajo Nation Supreme Court upheld her finding in September.

 The law is also key in the strategy of a grassroots group, Hada'a sidi (The Vigilant Ones), which is challenging council spending practices in two lawsuits filed in district court last summer.

Some delegates believe the courts have misused the traditional law, using it to legislate from the bench, while others argued against tampering with it.

Raymond Maxx (Coalmine Canyon/Tóh Nanees Dizí) said the Fundamental Law has its purpose and to make changes, and add into it Western philosophies, would muddle its intent.

"Let's back up and reassess this legislation properly," Maxx urged his colleagues. "When we work with Diné Fundamental Laws, we use the k'é concept and work together and speak to each other to find resolutions. If we change this, we are changing all these laws and creating new laws.

"It's not what's good for the people," Maxx said. "It's what's good for the council."

Kee Allen Begay (Many Farms/Round Rock) also defended the law, but acknowledged that people have misinterpreted its meaning.

"It's us who are ruining it, misinterpreting it," Begay said. "We are crossing those lines, not interpreting it the way it was put before us."

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