Guest Column: Supreme court’s decision disappointing, very troubling

Posted by Navajo Times | Feb 26, 2015 |

Leonard Tsosie

By Leonard Tsosie
Special to the Times

On Feb. 20, the Navajo Nation Supreme Court issued its opinion in Tsosie v. Navajo Board of Election Supervisors. The Court does not acknowledge the fact that it started this election mess in the first place by creating a belated filing challenge. It now wants to blame the legislative branch by stating that the “presidential election has been unnecessarily fraught with delays and legislative maneuvering.”

The Court accuses the Election Board and the Council of “self-interested actions.” When I sponsored these resolutions, I was simply addressing the disenfranchisement of Navajo voters caused by the Navajo Supreme Court. I had nothing to gain for myself. Where the Supreme Court comes up with this notion of self-interest, I am at a loss. The Court now appears to be blaming without acknowledging that it started the confusion all along by disregarding the choice of the Navajo People in the primary election.

The Court also says that the Council disregarded Navajo laws without stating which laws were disregarded. It is the prerogative, and the right of the Council, to address matters important to the Navajo People. If it needs to change laws, that is the function of the Council as a legislative body. The Court now appears to indicate that no law can be changed without its permission. Such a position goes against every democratic principle that the Navajo People believe in.

All Resolution Laws of the Navajo Nation are passed in the same way and have the same weight. Yet, Navajo Supreme Court is now establishing hierarchy among these Resolution Laws to promote its own self-interest on which laws to use for its own purpose and to aggrandize its power. There is no right of judicial review granted by the Treaty of 1868. Title Two Amendments of 1989 no longer exists because it has been replaced. In the absence of an argument, the Court always relates back to the “Navajo higher law in fundamental customs and traditions.”
Although the practice of election is not a Navajo custom or tradition, many Navajo persons have accepted the practice. But, that does not mean that a review of election laws should be from the perspective of custom or tradition. It should be based on laws passed by the Navajo Nation Council and signed by the President. The Court is just making up rules as it goes from case to case to the detriment of Navajo participatory democracy. This is a very troubling conduct. To have the edge, the Court, at its own whim, decides what is an organic law or not.

The Court now has elevated Navajo election laws to being organic. No other jurisdiction has a similar designation. Simply put, election laws can be modified by a legislature without the permission of a court and Navajo Nation is no different. Interestingly, the Court expresses concerns for the “basic right of our people to choose their leaders” when it disregarded that very same right only a few months ago. Navajo People should be wary of this double-talk from the Supreme Court.

Further, the Council never turned a “blind eye.” As a legislature, it has the authority to change the law based on the concerns or requests of the Navajo People. It is the Court which turned a blind eye to the many letters, statements to legislations, and resolution of Navajo Chapters requesting that Navajo People be allowed to choose a leader of their choice. Interestingly, the Court makes no reference to these requests.

The Court incorrectly states that the Council attacked the credibility of the Hataaliis without expressing its own interpretation of the stories. First, at no time did the two (2) Resolutions attack the credibility of Hataaliis. Second, the Court chose not to have oral arguments and shut off all opportunities to provide for an interpretation. The Court cannot now disingenuously blame and attack the Council.

Under the guise of speaking for the Navajo People, the Court takes advantage of opportunities to limit the powers of the other two branches while expanding its own power. The Court forgets that its justices are not elected by the Navajo People. It is the Council and the President who are elected by the Navajo People. They are the two branches who have credible claims of representing the Navajo People and not the Court. Maybe it is time that Navajo justices and judges be subjected to the vote of the Navajo People.

While addressing the pardon question, the Court appears to be saying that a Navajo legislature cannot have power not specifically identified in statutory law. This same logic is used by federal courts and the U.S. Supreme Court to deny Navajo jurisdiction. Rather than supporting Navajo Nation governmental authorities to make laws even where it was not specifically stated, the Navajo Nation’s own supreme court now attacks Navajo jurisdictions.

Every federal court will now be quoting this decision for the proposition that a Navajo legislature does not have certain authorities because it was never specifically stated somewhere. Does this mean that since Navajo law never mentioned jurisdiction over certain persons, activities or lands, then it does not have jurisdiction? This is a scary proposition coming from Navajo Supreme Court and it amounts to the undermining of Navajo jurisdiction.

Finally, it is interesting to read Chief Justice Herb Yazzie’s previous involvement with the very questions that were before the Court. I take this as an admission on his part that he had a serious conflict of interests and should have excused himself from the case. In the end, this decision was expected to be an unfair decision and it turned out to be that. It is up to the Council and the President to put this matter back in harmony with the support of the Navajo People.

Leonard Tsosie represents the chapters of Pueblo Pintado, Casamero Lake, Whitehorse Lake, Counselor, Ojo Encino, Littlewater, Baca-Prewitt and Torreon on the 23rd Navajo Nation Council.