High court to consider impact of law on court cases

By Jason Begay
Navajo Times

WINDOW ROCK, March 11, 2010

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The Navajo Nation Supreme Court has pushed back two high-profile cases by a month in the wake of a new law that the court says could enhance the Navajo Nation Council's immunity against lawsuits, and may not be valid.

The law in question limits the use of Diné Fundamental Law to Peacemaker Court, and the justices said in two orders issued March 4 that this raises questions in both cases, because both sides rely heavily on Fundamental Law in their briefs.

The cases at hand are Timothy Nelson v. Joe Shirley Jr. and his initiative committee, in which a Western Agency voter is seeking to overturn the Dec. 15 special election that reduced the council from 88 to 24 members; and Office of the President v. Navajo Nation Council, in which the council is appealing a Dec. 14 ruling that reinstated Shirley after the council put him on leave.

Stung by recent rulings that invoked Diné Fundamental Law, the council in January passed a bill to prevent the courts from basing rulings on Fundamental Law. The hastily drawn legislation did not address what would become of cases already in process that cite Fundamental Law, such as the election challenge that most delegates are openly supporting.

The bill to restrict use of Fundamental Law said the courts, including the Supreme Court, are to rely only on statutes, which are the laws passed by the council.

Shirley vetoed the bill, saying it was a blatant attempt to tie the courts' hands, but the council called a special session Feb. 23 and overrode the veto by a large margin, and the restrictions took effect instantly.

"It appears that the new legislation purports to enhance the immunity of the Navajo Nation Council and all council delegates against lawsuits," states the court's order requesting supplemental briefs in the president's office v. the council. "As a result, a question arises as to what impact does the new legislation have on this lawsuit. Can this lawsuit proceed?"

The court has postponed hearing oral arguments to 10 a.m. on April 19 at Diné College in Tsaile, Ariz.

Oral arguments in Nelson v. Shirley are now scheduled for 10 a.m. on April 20 at the Navajo Nation Museum in Window Rock.

Parties in both cases have briefed their positions citing Diné Fundamental Law, the court pointed out, and the justices will have to consider the impact the council's bill has on their respective legal arguments.

In the order requesting further briefs in Nelson v. Shirley, the court points out that the new law appears to prohibit judicial review of the laws the council enacts, particularly those that fundamentally change existing concepts of tribal government.

"This not only raises the issue of what impact there may be on the lawsuit, but more importantly on whether the new legislation itself is legally valid," the order states.

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