High court questions Shiprock Home's status
By Cindy Yurth
Tséyi' Bureau
NEW HAVEN, Conn., Nov. 21, 2011
One of them was, What were they even doing there?
Since the dispute involved agencies of the Navajo Nation and private corporations, "Why was this not brought before the Office of Hearings and Appeals?" Chief Justice Herb Yazzie asked.
Good question, said James W. Zion, attorney for the Home and RJN.
"This could have all been litigated already," he said.
Navajo Nation Attorney Brian Lewis said his superiors had asked that he take the home and its contractor to court because RJN and the Home were flouting Navajo Nation procurement rules and locking Navajo Nation personnel out of land that is owned by the nation.
The high court took the matter under advisement, promising a speedy ruling.
At issue is who is authorized to finish a new building to house the domestic violence shelter. Under a contract with the Home that predates the business-site lease, RJN has completed 80 percent of a complex that would house 60 abused women and children - twice as many as can be housed in the Home's existing complex of ramshackle trailers.
The new buildings have been in the works for seven years, shut down several times awaiting new funding sources. Now the funding is in place but the Navajo Nation's Department of Justice says the contract between the Home and RJN violates procurement rules.
The nation has rebid the contract and selected a contractor, Lewis said, but is still waiting for the contract to go through the contract management process.
Meanwhile, tribal employees were unable to gain access to the property because RJN or the Home had placed a lock on the gate.
Earlier this year, they were granted a restraining order by the Shiprock District Court to have the lock removed and proceed with construction. The Home and RJN are appealing the district court decision, saying RJN's contract is valid and signed by the nation's representatives.
Yazzie, however, raised some questions that have not been brought up before. To wit: Is the Home a Navajo Nation corporation? And if not, does it even have authority to be doing business - albeit offering a free service - on the Navajo Nation?
Zion couldn't answer the first question, though he did attest the Home is incorporated in New Mexico.
As for the second, "My reading of the statute is that, yes, it does," he said.
"Does that make the sovereign act of forming a corporation under Navajo Nation law a novelty?" Yazzie asked in turn.
"Apparently, it's a quirk in our legal history," answered Zion.
Lewis pointed out that the Navajo Nation Council had already rejected a request by RJN and the Home for "a wholesale waiver of Navajo Nation laws" last November, and urged the justices to uphold the district court decision so construction could commence.
He said the only thing holding up the construction is that "RJN and Shiprock Home insisted - absolutely insisted - that RJN be the only contractor."
Zion argued that RJN's right to due process had been violated, as the Navajo Housing Authority had barred him from working on the Navajo Nation with no reason except that he had signed a contract that it now deemed illegal seven years after the fact, and he was not allowed to appeal because he could not make it to the hearing date set up by the Navajo Housing Authority.
"RJN is ready to start work now," Zion said.
The hearing was followed by a question-and-answer period during which one observer asked why the justices had selected this particular case to hear at Yale Law.
Yazzie replied the justices felt it would be of interest to students, especially those interested in Indian law.
"We thought ... the use of land, government administration, the concept of corporate entities on Indian land ... is interesting," he said. "Time will tell how we treat that concept."
The Court was invited to Yale by the dean's office, the Office of Student Affairs, the Native American Law Students Association, the Asian Law Students Association and the dean of the Native American Cultural Center.