Special prosecutor named to investigate elected officials and tribal employees
By Noel Lyn Smith
WINDOW ROCK, Jan. 28, 2010
A Washington, D.C., lawyer has been selected by the special division of the Window Rock District Court to investigate allegations of illegal and unethical behavior by elected officials and employees of the Navajo Nation.
In a report to the Navajo Nation Council on Monday, Attorney General Louis Denetsosie said Alan Balaran was named special prosecutor after the three-judge panel reviewed three applications Jan. 20.
Balaran, who served as the court-appointed special master in the Cobell trust fund case, will be under the jurisdiction of the special division, Denetsosie added.
On Dec. 28, Denetsosie asked the special division to appoint a special prosecutor to investigate the tribe's contracts with OnSat Network Communications Inc., a $2.2 million loan guarantee to BCDS Manufacturing Inc., and payments from the Navajo Nation Council's discretionary fund to family members of several legislative branch employees.
"The appointment of a special prosecutor, I alone had to make that decision," Denetsosie said. "I believe I applied the law properly and I believe firmly that I done the right thing."
Denetsosie asked the court for assistance in securing $500,000 from the Budget and Finance Committee and the controller's office to pay the special prosecutor.
Some delegates questioned why only their discretionary funds would be reviewed and not the president's.
"Why doesn't it include everybody that's using the discretionary fund, including the president's office, the speaker's office and the Navajo Nation Council?" Elmer Milford (Fort Defiance) asked.
Denetsosie replied that he is bound to act on information that a violation of the tribal code may have been committed by a tribal official.
"Up to this point we don't have specific (information) relative to the Office of the President and Vice President or the first lady," he said.
He told the council that the office received "significant" information about the use of council discretionary funds through investigative stories written by Navajo Times reporter Marley Shebala.
"She named names, she named amounts and she put dates on them," Denetsosie said. "That is significant for us to conduct our own preliminary investigation."
He pointed out that the Times named four employees from the legislative branch whose family members received more than $100,000 in assistance from the discretionary fund.
Times' stories confirmed
Asked by one delegate why he would trust the newspaper, Denetsosie said his office did its own investigation and confirmed the Times' findings.
He said the special division judges had asked the same question - why believe a newspaper story?
"We told them that we did our own investigation. We would not rely on the reports of the newspapers and we obtained information from the auditor general, from the Office of the Controller and I employed the assistance of the White Collar Crime Unit to check out facts for me," he said.
At that point, Denetsosie read aloud from Article 6 of the Navajo Nation Code, which states that in determining whether grounds sufficient to investigate exist, the attorney general shall consider the degree of specificity of the information received and the credibility of the source of the information.
"I was satisfied that the information I received from the auditor general, the controller and from the White Collar Crime Unit was specific and was creditable," he said.
Denetsosie assured the council that his office will not supervise Balaran. However, he said, his office may file petitions later to expand Balaran's jurisdiction.
The attorney general's office would like this investigation completed this year, Denetsosie said.
Delegate Harry Claw (Chinle), along with other delegates, expressed his disappointment that the special prosecutor's investigation will not cover the president's discretionary fund and that the Navajo Times did not examine how the president spends his discretionary money.
"Why did she (Shebala) not go into the president's (discretionary fund)? Why did specifically she pick on that?" Claw asked. "Because the president also gets the discretionary fund no different from ours. In fact he gets more, a whole lot more."
The Navajo Times stories were based on documents given anonymously to the newspaper, said Duane Beyal, editor of the paper.
The newspaper has made many requests to the president's office for information about how its discretionary funds were used, he said, but has met a stone wall.
"The glaring fact is that the president refuses to release this information," said Beyal, "and appears to want to sit back, let the council take the public backlash, and use the public anger for its own political purposes."
Claw also questioned the members of the panel that picked the special prosecutor, the special division of the Window Rock District Court, to which the chief justice assigns three judges or retired judges for two-year terms.
"Who's sitting on that? Because as we all know the court is so biased against the council," Claw said. "Maybe they went out and recruited somebody. We can't trust them anymore."
Delegate Katherine Benally (Dennehotso) said she is dissatisfied with him basing his preliminary investigation into the discretionary funds on news stories, and accused him of being inconsistent.
Benally was the subject of a Navajo Times story that examined how she spent $9,999 that she allocated to herself from her discretionary fund. At the time, Benally was unable to provide documents to substantiate her claim that she used the money to pay an electrician to wire homes in her chapter.
After the story ran, she took out a full-page ad in the Times that displayed photocopies of a purported invoice from the electrician, and other evidence of her good faith.
"You really have tarnished the office and the position that you're holding," Benally told Denetsosie. "If you are making investigations based on newspaper stories, the reporting about what BCDS and OnSat were doing was in the newspaper four and five years ago. All those charges, all those accusations were in there."
If he'd followed up on those leads, there would be no need to pay for a special prosecutor at this time, she said.
"You have double standards right there," she said. "Those investigations should have happened just based on the newspaper articles."
Prior to receiving recent reports from investigators hired by the council, Denetsosie had refused to seek a special prosecutor for the OnSat and BCDS cases, saying he saw scant evidence of criminal wrongdoing by tribal officials.
Delegate Leonard Tsosie (Pueblo Pintado/Torreon/Whitehorse Lake) supported the way Denetsosie approached the investigation.
"Media is regarded sometimes as the fourth branch of government," Tsosie said, "because sometimes that is the only time information comes out on the operation of the government and it comes to the attention of certain government officials."
Delegate Edmund Yazzie (Thoreau) suggested the FBI should conduct the investigation instead of the special prosecutor.
"That's the only time we will get a total fairness out of this from the president's office and from the council's office with this discretionary (fund)," Yazzie said.
Denetsosie explained that the FBI has no jurisdiction over violations of tribal law.
After a two-hour discussion, the council voted 36-12 to accept Denetsosie's report on the appointment of a special prosecutor.