Delegates say lawyer went too far with reform bill
By Marley Shebala
Navajo Times
WINDOW ROCK, Oct. 20, 2011
The Navajo Nation Council's attorney, Edward McCool, says yes.
But the chairman and vice chairman of the Council's Subcommittee on Government Reform say no.
The disagreement between McCool and the subcommittee unfolded when Chairman Leonard Tsosie and Vice Chairperson Jonathan Nez saw that McCool had written the subcommittee's proposal to change the commission as a voter referendum rather than an amendment to the act.
Then he posted the referendum legislation on the Council's Web site for public comment on Oct. 6.
Tsosie and Nez said in separate interviews this week that they believe McCool overstepped his authority, and that the subcommittee is expected to meet Monday, Oct. 24, at 1 p.m. in the Council chamber to discuss his actions.
Both delegates emphasized that the subcommittee had nothing to do with McCool's decision to make their bill a request to the Council for a referendum.
"His clients tell him to do one thing and he does the opposite," Tsosie fumed. "He's just making our life harder."
McCool said Tuesday that he was asked to draft legislation and he did that.
On Sept. 20, McCool sent a memo to Nez questioning the subcommittee's plan to amend the law and reduce the commission from 12 members to five, eliminating representation for several groups in favor of putting more delegates on the panel.
McCool stated in his memo that the Navajo Nation Supreme Court noted the "significance" of the commission and its office in a July 2010 ruling: "Of all the entities established by the Title II Amendments, the Commission on Government Development and the Office of Navajo Government Development are the sole entities established according to the wishes of the people expressed through the coordinator of the Government Reform Project."
Power to the people
McCool also quoted the ruling's warning for the Council not to usurp the right of the people to determine their preferred form of government, which the commission was set up to determine.
The high court stated that "the power over the structure of the Navajo government is ultimately in the hands of the people and (the Council) will look to the people to guide it" and "that the power of the people to participate in their democracy and determine their form of government is a reserved, inherent and fundamental right expressed in Title I of our Dine Fundamental Law and the Navajo Bill of Rights," McCool quoted in his memo.
Tsosie said the subcommittee already had a discussion with McCool about whether the Supreme Court's decision meant the subcommittee's amendments to the commission had to go before the people as a ballot referendum.
"We didn't ask for (referendum) language," Nez said Tuesday. "The chief legislative counsel has his own interpretation of the Supreme Court decision. We, as delegates, have our own interpretation. We're following the Supreme Court order."
Nez said the ruling addressed the people's vote on the structure of their government, not changes to the structure of the government development commission.
Nez emphasized that the commission will take all of its recommendations on government structure to the people for their vote.
The Supreme Court's July 2010 ruling invalidated a decision by the previous Council to abolish the government development commission and move its staff members under the control of the speaker.
The justices ordered the immediate reinstatement of the commission and its administrative office.
But on the advice of then Chief Legislative Counsel Frank Seanez, the former Council ignored the high court's order, leaving the government development effort in limbo and leading to the disbarment of Seanez.
Need for more 'buy-in'
Nez recalled that during an earlier discussion by the subcommittee, the members felt a referendum on the membership change would actually undermine the Supreme Court order because it would delay the work of the commission.
He said that the subcommittee's amendments would merge the work of the subcommittee and commission and allow the Council direct involvement in the commission's work.
Nez said that as a Shonto Chapter official, he served on the commission and that it consistently failed to get Council approval for its government reform recommendations. He said this was because the Council did not take part in developing the recommendations and so had no "buy-in" on them.
According to the legislation drafted by McCool, the subcommittee is proposing seven changes:
¥ Change the commission name to the Commission on Government Reform.
¥ Change the committee's composition to include appointment by the speaker of five Council delegates instead of one, eliminating representatives from the Navajo healing arts, Dine College student body, Education Committee and the Women's Commission.
¥ Expand the choice available to the five agency councils, each of whom appoints one representative, to include regular citizens as well as elected officials.
¥ Allow the Council to amend commission law without prior recommendation of the commission's oversight committee.
¥ Change the meeting time of the commission from a designated day of the month to at least once a month at the call of the chair.
¥ Eliminate the requirement that commission meetings be held in Window Rock.
The subcommittee moved its Oct. 5 meeting to Shiprock, during which it unanimously approved the proposed amendments.
At that time, Tsosie said he would immediately give the amendments to McCool to draft into legislation, leaving enough time for the required five-day public comment period and review by the Nabik'yati Committee. The amendments could then have gone before the Council during the fall session, taking place this week.
McCool's decision to draft the bill as a referendum measure monkey-wrenched the plan to fast track the amendments.
Out of balance?
And speaking of the need for "buy-in" by stakeholders, the subcommittee apparently overlooked the commission itself in devising the amendments.
On Oct. 3, Government Development Commission Chair Bessie Tsosie informed the subcommittee in writing that the commission opposes expanding the number of Council delegates from one to five.
The panel would support the addition of one delegate, she said, but public hearings held when the commission was being formed made it clear that the people wanted "grassroot people to serve on the commission and not Council delegates."
She noted that the commission also felt that the delegates don't need any more demands on their time as they are already experiencing a "tremendous" workload following the Council downsizing in January.
The commission also opposes the elimination of a traditional healer, Bessie Tsosie said.
"(I)t is time that we reform our government to reflect our traditional customs and traditions," she added. "It is imperative that such a person sits as a commission(er)."
The commission likewise opposes the removal of representatives from the Women's Commission and Education Committee.
"The Navajo people's upbringing is aligned with maternal guiding principles; it is necessary that the womanhood be represented," Bessie Tsosie said. "In many ways, education is akin to government. The thinking of government and education should be parallel."
Two other members of the Subcommittee on Government Reform, Russell Begaye and Dwight Witherspoon, on Tuesday declined to comment on the proposed referendum bill, saying they hadn't seen it.
The fifth subcommittee member, Jonathan Hale, was unavailable for comment.
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