Guest Column: Doctrine of ma'ii-ness causes chaos, disharmony, illegitimate presidency

Posted by Navajo Times | Feb 19, 2015 | Guest Essay |

By Leonard Tsosie
Special to the Times
Over 51,000 Navajo persons happily casted their ballots in the Aug. 26, 2014 primary election to determine who should lead their Navajo Nation. There were no disputes, no chaos, no ill feelings, no disharmony. The blissful participation of the Navajo people in the election was the goal of Navajo Nation Council’s Naabik’’yáti’ Subcommittee on Government Reform when it planned the first presidential forum at Pinon Chapter (Navajo Times and KTNN Radio did an excellent job in carrying out the remaining forums). Within 10 days, the happy days of the election were gone.
Two losing presidential candidates, Dale Tsosie and Hank Whitehorne, filed their election grievances through their lawyers, David Jordan and Justin Jones. The Navajo Nation Office of Hearings & Appeals rejected the grievances relying upon the law at 11 N.N.C. ¤ 24. The four then marched to the Navajo Nation Supreme Court to file their appeals. The Supreme Court (with Chief Justice Herb Yazzie and Associate Justice Eleanor Shirley) accepted the appeal and rendered a decision using 11 N.N.C. ¤ 341. Disputes, chaos, ill feelings, and disharmony then set in.
It is clear that the legislative intent of the Navajo Nation Council was to have ¤ 24 be narrowly applied to address and make “determination of eligibility of the candidate challenged.” If fellow candidates make no challenges (as was the case for this primary election), then the election goes forward. The wisdom of the Council was to have immediate determination of candidates’ qualifications by certain authorities; and, if none are made, then allow the Navajo voters to choose a candidate of their choice. Unfortunately, Navajo Supreme Court did not see it that way. It chose to make a convoluted rationale to rely upon a different law at ¤ 341 to create a filing challenge which was never filed before.
I understand that Section 341 is a broad law as it states that a complaint filed must set “forth the reasons why he or she believes the Election Code has not been complied with.” To address the many scenarios encompassed in election disputes, the Council allowed the broadness of the law. Otherwise, it would’ve had to enact hundreds of election laws. Thus, the Council enacted the broader law at ¤ 341 while keeping the specific and exclusive remedy found at ¤ 24. The narrowness of ¤ 24 was done for a reason: it was to avoid the chaos of election witnessed in this year’s election and to have immediate decision of Navajo voters be realized.
The original case in the Navajo Supreme Court had Dale Tsosie and Hank Whitethorne v. Christopher Deschene as the original parties in Case Nos. SC-CV-57-14, SC-CV-58-14. Dale Tsosie received only 2.5 percent of the primary vote and Hank Whitehorne got 0.77 percent. It is clear that the two do not have the support of the Navajo people. Yet, they keep pushing through their two lawyers. Many Navajo voters, including me, are questioning if Tsosie/Whitethorne are really paying the legal fees to finance this election chaos. I have an uneasy feeling that someone or an outside entity is financing this chaos and disharmony. How can two losing candidates with tepid support of the Navajo voters continue to engage in expensive legal battles to promote election chaos by aiming to dislodge a winning young Navajo candidate?
With 3.2 percent support, Tsosie/Whitethorne feel they have standing to push Navajo election into further chaos and entanglement in the halls of Navajo Supreme Court.
The original case did not end with the decision in Tuba City on Sept. 26, 2014. It entangled more persons and offices. A Petition for Writ of Mandamus was filed entangling the Navajo Board of Election Supervisors and Navajo Election Administration. After the mandamus hearing of Oct. 20, 2014, we saw the split in the Navajo Supreme Court decision. Justice Irene Black opined that the Court did not have jurisdiction. Associate Justice Shirley was of no help in the justices’ legal discussion because she has never shown independent legal thought contravening the chief justice.
Deschene’s appeal represented a major policy issue and this discussion was never had because of Supreme Court’s simple and unjust rule that calls for the attachment of a certified copy of an order. By this time, chief justice “gunning” to remove candidate Chris Deschene became evident when the Navajo Supreme Court dismissed Deschene’s appeal in less than 24 hours no matter the questionable jurisdiction of Navajo Supreme Court to take up the mandamus action.
The entanglement continued with Tsosie/Whitethorne wanting to throw members of the Navajo Board of Election Supervisors and Navajo Election Administration into jail using the contempt powers of the Navajo Supreme Court as a tool to do so. At no time did I see a specific and clear order specifically identifying the Board members and administrative staff to carry out a specific act. Yet, the Supreme Court chose to punish the Board members at the Chinle court proceeding on Oct. 31, 2014, without affording individual hearings for the Board members. There, I witnessed Chief Justice Yazzie asking Mr. Steve Boos about his representation of the Board and whether the Board members received the notices. But, the notice was not for individualized hearings where Board members could defend themselves.
At the Chinle proceeding, Navajo Supreme Court allowed David Jordan to rant by disrespectfully calling concerned Navajo voters gathered outside as “mob.” They were outside because there was no room for them inside the courtroom and they were undemocratically not allowed to be inside. At this hearing, Justice Black chose to excuse herself from participating in any further proceeding (I believe Navajo people are entitled to an explanation as to why she excused herself). Chief Justice and Justice Shirley then found the Board members to have violated “Navajo Election Laws. But, which laws? Where was the evidence?
The Supreme Court cited 11 N.N.C. ¤ 365, which is a penal provision and the Board members were never criminally charged with a violation of that law in the first place. In trying to make something stick to the Board members, the Supreme Court then cites 11 N.N.C. ¤ 324(A). Section 324(A) says “Board members shall not have been convicted of a felony or any misdemeanor involving crimes of deceit, untruthfulness and dishonesty,” It does not include contempt.
Further, section 324(A) does not give jurisdiction to Navajo Supreme Court to make these findings. That rests with a trial court or the Ethics and Rules Committee of the Navajo Nation Council. As an after-thought and in haste (“gunning”), Chief Justice decided to not throw Board members into jail as to not make martyrs out of them, but simply strip them of their lawful titles bestowed upon them with the vote of the Navajo peopleÑremember, election board members are voted in. Seeing how Navajo Supreme Court nonchalantly stripped elected officials without due process of law is very troubling.
Governance of elections as policy and political matters properly rests with a legislature like the Navajo Nation Council. The Navajo Supreme Court inserted itself into this arena to act like a legislature and a prosecutor while still wearing a robe. The Court accepted a “fluency test” as proposed by a private litigant, without asking for his qualifications as a Navajo language examiner, ignored legislative intents, acted as supervisor and punisher of the Navajo Board of Election Supervisors and Navajo Election Administration, censored the numbers of votes casted for the Office of the President in the general election, made threats to lawyers representing various Navajo governmental entities thereby causing a chilling effect where government lawyers clam up as to not give unfettered advice (with threats of disbarment of Navajo government lawyers).
The Navajo Supreme Court has developed a judicial supremacy in derogation of the principles of separation of powers and Navajo people’s harmonious understanding of their government. The Court now sits to determine if the resolutions passed by the Navajo Nation Council in December 2014 should be invalidated. The Navajo Supreme Court has chosen not to listen anymore nor have a conversation and decide the case away from open, transparent daylight. The decision to invalidate will not be made upon a good Navajo legal doctrine, but upon the doctrine of “ma’ii-ness”.
David Jordan and Justin Jones, still representing Tsosie/Whitethorne (remember them?), have filed trash-talking legal briefs filled with nothing but disrespect. They use ma’ii stories to push for legal conclusions. A purported Navajo citizen by the name of Frankie Davis also filed a nonsensical legal brief to gain notoriety by attempting to trash my name. I met this lady one time at the chamber and only heard venomous words from her to the disgust of nearby Navajo persons. It sounded like she was one of the original ma’iis. The Navajo Supreme Court has demoted its stature by accepting such trash-talking court briefs in total conflict with Navajo harmony.
Navajo Supreme Court has unilaterally made itself the arbiter of Diné Fundamental Law and uses these unwritten laws from the creation stories to supersede today’s Navajo laws. Neither Chief Justice Yazzie nor Justice Shirley have ever been properly anointed by Navajo medicinal people to be such qualified arbiters. I believe it is time to reevaluate the Judicial Branch of the Navajo Nation.
The Joe Shirley and Russell Begaye campaigns have also filed amicus briefs just wanting a quick election so one of them can have power sooner while both disavowedÑlike the Supreme Court – the Navajo concept of “talking things out” for the benefit of the Navajo people. It is not rhetoric to call for a meeting of Navajo leaders to discuss matters that are so important to the Navajo people.
I made the effort to seek a meeting with Joe Shirley and Russell Begaye campaigns to sit down and come to an agreement. Both campaigns chose not to. Now, one of them will be elected as president of the Navajo Nation. The stint of “illegitimate” presidency will follow them: Joe Shirley will not be legitimately elected because his main opponent was removed by Navajo Supreme Court. And, if Russell Begaye wins, he will not be legitimately elected because he was not one of the candidates to receive the most votes in the primary election and was put on the ballot by Navajo Supreme Court. This is what the doctrine of ma’ii-ness causes: disputes, chaos, ill feelings, disharmony, illegitimate presidency, no progress, headaches, etc.
Navajo people, despite adversities, have survived through their prayers, good teachings, and following the concepts of harmony and hozhó. I don’t doubt that Navajo people will overcome this doctrine of ma’ii-ness by ridding the Navajo world of it and greet the morning light again. May the Creator continue to bless our homeland.
‘Ahéhee’.