Shelly highlights energy in state of the nation, Council questions veto of Bennett Freeze

By Alastair Lee Bitsoi
Navajo Times

WINDOW ROCK, Oct. 22, 2013

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(Times photo - Donovan Quintero)

Navajo Nation President Ben Shelly addresses the 22nd Navajo Nation Council during the first day of the Fall Session on Monday in Window Rock.

Most of the discussion of President Ben Shelly's state of the nation address to the Navajo Nation Council on Monday centered on why he line item vetoed $3 million the Council had initially allocated for the Former Bennett Freeze.

In September, Council had passed a half-billion comprehensive budget for fiscal year 2014, which Shelly signed into law on Sept. 27.

Even though the president signed the budget into law, which came with 34 amendments mostly consisting of Council's supplemental requests that left the tribe's Undesignated Unreserved Fund Balance with $107, the president line-item vetoed $8.7 million in an effort to keep the UUFB $7.7 million above its minimum balance of $17.3 million.

The $3 million Bennett Freeze allocation would have funded infrastructure projects like water lines and power lines and housing in an area that was in a "freeze" for about 40 years.

Monday's discussion of the former Bennett Freeze started with Council delegate Lorenzo Curley (Houck/Klagetoh/Nahata Dziil/Tsé si áni/Wide Ruins) questioning Shelly, who explained in his address that he vetoed the $3 million because the "legislation was done incorrectly."

Interpreting his written report into Navajo, the president also said that the land status of the area -- which covers approximately 1.5 million acres of the entire 27,413 square mile reservation -- would have to be solely under Navajo jurisdiction for him to approve such funding.

"We will ensure that the land status be solely under Navajo Nation jurisdiction, and that a comprehensive plan for the prudent use of the $3 million be made before I reconsider," Shelly said.

The president added that a memorandum of understanding between the tribe and Bureau of Indian Affairs to implement an Integrated Resource Management Plan outlining the "collaboration, technical activities, NEPA requirements, and roles and responsibilities" of the land is also a necessary requirement before rehabilitation funds go toward the area.

To date, the BIA has spent $1.1 million out of the original $1.3 million enacted in fiscal year 2012 for the Integrated Resource Management Plan to take place. The plan is currently under way with data and interviews being collected and completed by next year and concluding in 2015, the president stated.

"I want to be clear the jurisdiction of the Navajo Nation prevails over BIA," Shelly added.

Curley, who serves as a member of the Navajo Hopi Land Commission, didn't understand why the BIA would have jurisdiction over the Freeze area.

"That area is the Navajo Nation," he said, explaining that it was the Hopis that filed suit in U.S. District Court claiming the disputed area as their property.

He added that the 2006 settlement reached between both tribes unfroze the area and defined jurisdictions in an effort for development to occur.

"I just don't understand why the BIA wants jurisdiction," Curley said, adding the Navajo Hopi Land Commission has been lobbying the BIA for funding for programs in the Freeze area.

According to Council Delegate Duane Tsingine (Bodaway/Gap/Kai Bii To/Coppermine/Tonalea/Red Lake), the jurisdictional issue of the Former Bennett Freeze has been a priority of the Navajo Hopi Land Commission.

Tsingine recommended Shelly work with U.S. Rep. Ann Kirkpatrick (D-Ariz.), who also provided a report to the Council on Monday, and the Office of the Navajo Hopi Land Commission to draft legislation to Congress requesting funds to start rehabilitating the region because it's a "federally initiated project," not a tribally initiated one.

Tsingine did say, however, that the Freeze area is still under federal jurisdiction, from his understanding.

"I don't know if it's Navajo land. The chapters out there don't need home site leases or have grazing permits," he said, adding that it's vital for Attorney General Harrison Tsosie to clarify the status of the land.

In addition to their comments, Council Delegate Walter Phelps (Cameron/Coalmine Canyon/Leupp/Tolani Lake/Tsidi To ii) also expressed his concerns and disagreed with Shelly's notion of the need to clarify the jurisdiction.

"I do not feel that we should be sending messages out to the world saying that it's unclear that our jurisdiction is not clear," Phelps said. "That is a really, really serious error, I believe, on your part to make that kind of position."

Phelps added that Shelly's position on the former Bennett Freeze doesn't help the tribe, considering that the tribe's position is that the National Park Service is encroaching on tribal land in Western Navajo Agency.

"We can't be doubting whether we have jurisdiction or not," he added. "We do have jurisdiction. Navajo sovereignty does exist all the way to the (Colorado) river. Our leaders in the past never said that. We have never given up jurisdiction."
To explain the status of the former Bennett Freeze area, Tsosie, the attorney general, used a prop to explain the jurisdiction of the area. Pointing to a map, Tsosie pointed to how the original treaty reservation was retained through the Treaty of 1868 and how other tribal lands were mostly acquired under subsequent executive orders, including the Bennett Freeze and Navajo Partitioned Lands, to make the present 27,413-square-mile reservation.

Regarding the Bennett Freeze area, Tsosie said the 2006 settlement with the Hopis clarified the jurisdictional issue for both tribes. Instead of jurisdiction being the issue, he said the issue really is the "squabbling of federal dollars" to rehabilitate the Freeze area.

"The real dispute that were having is who is going fund the rehabilitation effort," he quipped. "Should it be the federal government, Navajo Nation or should it be both? Those are the policy matters that this particular Council has to address."

Following Tsosie's brief report, Council delegate Leonard Tsosie (Baca/Prewitt/Casamero Lake/Counselor/Littlewater/Ojo Encino/Pueblo Pintado/Torreon/Whitehorse Lake) recommended Shelly issue a press release clarifying his position on the Bennett Freeze Area.

Like Phelps pointed out, Tsosie said that the president's comments in his veto message, in which Shelly states the land status of the Freeze area is unclear, could be used against the tribe in matter of litigation.

"It clearly tells me that we don't have jurisdiction," Tsosie said. "I don't know how you do your veto message. I don't know if you ran by the Attorney General's office, and, if you did, he was negligent, too, for his oversight. This should have been caught and clarified from the onset because these kinds of comments will be used against the Navajo Nation."

Tsosie added, "We do have jurisdiction, and if we don't we should assume jurisdiction. It's a federally-induced issue."

Added Council delegate Katherine Benally (Chilchinbeto/Dennehotso/Kayenta), "The people that lives out there, regardless of land status, are Navajo people, and they deserve our attention. The funding was merely for them. We're pretty hurt about that from Western Navajo Agency."

In response to Council's concerns, Shelly said that if there is no plan in place as to how to rehabilitate the area, then, "How are we going to carry out the plan?"

In addition to the Bennett Freeze, the president's report also focused on the proposed Navajo Nation Energy Policy of 2013 and the need to develop the tribe's resources for energy development.

"Our future is clearly in energy," Shelly told the Council.

He added that the tribe's MOU with Lawrence Livermore National Laboratory has been beneficial to its energy portfolio and that with advances in clean coal technology from what he saw firsthand on visits to coal-fired generating stations in Alabama showed that the tribe's" future in coal is secure."
Regarding the proposed energy policy, which Council considered on Tuesday, Shelly said it only makes sense to adopt the policy considering the tribe's abundant resources.

"With our abundance of resources, both natural and renewable, it makes perfect sense to have a policy to guide us in decades to come," he said, asking the Council to keep the policy focused on energy.

"We have been advised, with our new direction in clean coal, we will shore carbon credits, which hold value," he added.

The president also touched on how renewable energy is the destiny for the tribe, given the recent opening of a 45,000-square-foot solar manufacturing facility and assembly plant in Fort Defiance.

He added that the production of the new panels in Fort Defiance would be used to build the new 40-megawatt solar farm at the Shush bi Toh Industrial Park in Iyanbito, N.M., and the proposed 4,000-megawatt solar project at the Paragon Bisti Energy Renewable Ranch in the Eastern Navajo Agency is another example of the tribe's future in the renewable industry.

Shelly also thanked the Council for passing amendments to the Veterans Trust Fund and informed them the funds will help build veteran homes, make repairs and renovations on others, while employing veterans.

"Funds will be equally distributed to the five agencies to build 15 homes per agency using the existing waiting list," the president said.

Other topics members of the Council asked of Shelly, and his agents, Chief of Staff Arbin Mitchell and Division of Economic Development Director Albert Damon, were the number of tribal employees that were laid off, after the implementation of the fiscal year 2014 budget, and the proposed Thoreau Railway Port Project.

According to Mitchell, 63 people were laid off because of decreases in the tribal budget and nine more were recently laid off because of the effects of the federal sequester. In total, 73 tribal employees have been laid off, he said.

The Thoreau Railway Port Project is a $13 million three-phase project that Damon considers would help the tribe offset its declining revenues from the federal government.

"If we can make this happen, you will have a project for millennia," he said.

Damon said an MOU has been signed with New Mexico Tech in Soccoro, N.M., to conduct a feasibility study of the rail project, which would ultimately allow the Navajo Nation to ship its products out onto the transcontinental railroad at cost to the tribe. With coal ownership on the horizon, as well NAPI products and oil and gas, having a finger in the transportation industry would be a huge benefit to the tribe, he noted.

In his closing remarks, Shelly reminded the Council that his door is open and that by the winter session they would see some of these projects he spoke of and others in fruition.

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