Briefs on the Navajo Nation presidential election

8/9/2019 Briefs on the Navajo Nation presidential election

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TABLE OF CONTENTS:

AUTHORITY OF THE AMICUS 1

i • • • • • • •

TATEMENT

1

ARGUMENT

2

CONCLUSION

3


3/27

AUTHORITY OF AMICUS TO FILE

The Supreme Court of the Navajo Nation invited candidates Joe

S h i r l e ~

Jr. and Russell

Begaye to file amicus curiae briefs in its order dated January 15 2015.

STATEMENT

The issue

of

concern for the amicus is the recently enacted Resolution CD-80-l4. The

Resolution is to allow for a Special Run-Off election followed by a Special General Election for

the Office

of

the President and Vice-President. The Resolution additionally directs the Navajo

Election Administration to cancel the President and Vice-President election for 2014. The

Resolution limits the Special Run-Off election to all 17 candidates including Christopher C.

Deschene.

Deschene was disqualified pursuant to 11 N.N.C. § 4. The Navajo Nation Supreme Court

ordered Deschene to be removed from the ballot because he was disqualified and proceed with

the general election pursuant to 11 N.N.C. § 44. Dale Tsosie and Hank Whitethorne v. NBOES

and NEA at

8

Nav. Sup. Ct.

October

23

2014

The Navajo Election Administration did not

immediately proceed with the general election and in the interim the Navajo Nation Council and

President passed this Resolution. This Resolution is invalid as it violates Title

11 of

the Navajo

Nation Code.

f

the Resolution is not invalidated it will continue to delay the election which will

only escalate the disharmony and confusion among our People and not bring the much needed

finality and hozho back to the Navajo Nation and our People.


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ARGUMENT

I.

RESOLTION

CD-80-14

VIOLATES TITLE 11

OF THE

NAVAJO NATION

CODE AND IS INVALID.

The Resolution finds under Section One D and

E.

the Navajo Nation Supreme Court's

decision to remove Christopher C. Deschene from the ballot, disenfranchised voters who voted

in the 2014 primary and general election. This Resolution is to provide a remedy

for

those

individuals that voted for Deschene. The Resolution's remedy for Deschene's voters is to allow

for a Special Run-Off election followed

by

a Special General Election.

The Resolution pursuant to Section Three authorizes a Special Run-Off Election and a

Special General Election. The Special Run-Off Election shall be scheduled for June

2

2015 and

the Special General Election to be scheduled for August 4, 2015. The Resolution limits the

Special Run-Off election to all

17 candidates who ran in the 2014 primary election, including

Deschene. Deschene remains a disqualified candidate for the Office of the President and Vice-

President.

In the instance a candidate is disqualified after the primary election, 11 N.N.C. § 44

addresses the issue, as follows:

In the event

of

death, resignation or disqualification of any candidate, who

by

virtue

of

the primary election was placed on the general election ballot, except the candidates for

the Office of the Vice-President of the Navajo Nation,

the candidate who received the

next highest votes in the primary election preceding the general election shall

automatically be placed as the new candidate on the official ballot in the general election

follOWing said primary election

Pursuant to

11

N.N.C. § 44, Deschene is disqualified, as such Russell Begaye received

the next highest vote in the primary election and therefore is the candidate to be placed on the

official ballot for the general election. There is no other option available under our laws

if

a

2


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candidate becomes disqualified after the primary election. This means that the Special Run-Off

Election and Special General Election is not allowed pursuant to Navajo law and in fact violates

11 N.N.C. § 44. f the Navajo Nation Council finds that 11 N.N.C. § 44 is harmful or infringes

on voter s rights the more appropriate mechanism is to amend to the Code not to pass a

Resolution that would violate law.

Furthermore,

if

Deschene

is

placed on the ballot will no doubt result in further litigation

and will only continue the delay of the election. The Resolution did not amend or waive any laws

in fact

Section Two

provides:

This Resolution does not amend Title II

of

the Navajo Nation Code, and other relevant

laws, but shall be interpreted as a Resolution to provide for a special remedy to address

the disenfranchisement of Navajo voters pursuant to the authority

of

the Navajo Nation

Council over election matters.

Deschene remains disqualified pursuant to 11 N.N.C. § 4 f allowed on the ballot, will

take the election back to where the election disarray first began. Any further delay of the general

presidential election, will only intensify the disharmony and confusion amongst our People.

I ask the Court to proceed with caution on this issue and strongly urge the Court to

respect the election laws and process. t is not good public policy to allow interference and

continue delay in the election ofour aat

aanii.

ON LUSION

This Resolution does not amend Title 11 of the Navajo Nation Code nor waive any

Navajo Nation law for the Special Run-Off election and Special General Election. Furthermore,

the continued delay

of

the general presidential election oversteps 2 N.N.C. § 1002 and 11 N.N.C.

§ 6 that provides the Term of the Office ofthe President shall be four (4) years.

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I request that the Court invalidate Resolution CD-80-14, uphold the laws

of

the Navajo

Nation by ordering the general presidential election to be conducted in accordance with Title

of the Navajo Nation Code and cause the general election to be held immediately to bring the

much needed finality and

oz o

back to the Navajo Nation and our People.

Respectfully submitted this day of February 6, 2015.

B Y : - - f F - = - - ' ~ ~ ~ ~

Russell Begaye

Post Office

ox

298

Window Rock, Navajo Nation (AZ) 86515

Telephone: 928-206-7622

Email: begaye2014@hotmaiLcom.

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Copies were emailed and mailed on 2/6/15 to:

David

R

Jordan

The Law Offices

of

David R. Jordan, P.C.

P.O. Box 840

Gallup, New Mexico 87305-0840

Email: [email protected]

ttorney or Petitioner Tsosie

Justin Jones

The Law Offices

of

Justin Jones, P.C.

P.O. Box 2240

Farmington, ew Mexico 87499


ttorney or Petitioner Whitehorne

Steven

C

Boos

835 Second Ave. Suite

123

Durango, CO 81301

Email: sboos(c:z)mbssllp.com

ttorney or Navajo Nation Legislative Counsel

Michael

P

Upshaw

8171 East Indian Bend Road Suite

101

Scottsdale, Arizona 85250


ttorney or Navajo Election dministration

Kellie Peterson

Magnum Wall Stoops

&

Warden, PLLC

P.O. Box

10

Flagstaff, Arizona 86002


Joe Shirley, Jr.

P.O. Box 37

Window Rock, Arizona 86515

5

mailto:[email protected]:[email protected]:///reader/full/sboos(c:z)mbssllp.commailto:[email protected]:[email protected]:[email protected]:[email protected]:///reader/full/sboos(c:z)mbssllp.commailto:[email protected]:[email protected]


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No. SC-CV-68-14

SUPREME COURT OF THE NAVAJO NATION

DALE TSOSIE & H NK WHITETHORNE,

Petitioners,

v.

NAVAJO BOARD OF ELECTION SUPERVISORS &

NAVAJO ELECTION ADMINISTRATION,

Respondents; and

CHRISTOPHER DESCHENE,

Real Party in Interest.

BRIEF.oF JOE SHIRLEY, JR.

micus Curiae

APPEARAJ'l"CES:

James W. Zion

David R Jordan

Attorney for Joe Shirley, Jr.

Attorney for Dale Tsosie

3808 Ladera Drive N.W. P.O. Box 2240

Albuquerque, NM 87120

Gallup,

NM

87305-0840

(505) 839-9549

Justin Jones

Kellie

A.

Peterson &

Attorney for Hank Whitethorne James Griffith

P.O. Box 2240

Mangum, Wall, Stoops & Warden

Farmington, NM 87499

Attorneys, Navajo Bd. Election Sups.

P.O. Box 101100 North Elden St.

Flagstaff, AZ 86002

Michael P. Upshaw Steven C. Boos

Attorney for Navajo Election Administration Maynes, Bradford, Shipps & Sheftel

8171 East Indian Bend Road, Ste.

1 1

Attorney for Navajo Nation Council

Scottsdale, AZ 85250

P.O. Box 2717

Durango, CO 81302

http:///reader/full/BRIEF.oFhttp:///reader/full/BRIEF.oF


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TABLEOFCONTENTS

Subject Page(s)

I. STATEMENTOFTHECASEFROMTHEAMICUS PERSPECTIVE 1-3

II. JOESHIRLEY,JR.HASSTANDINGTOBEAFRIENDOFCOURT 3- 7

ill. THERESOLUTIONVIOLATESTHEPROPER

STATUTORYSCHEME 7- 11

IV. RESOLUTIONCD-80-14ISVOIDEXPOSTFACTO

ORRETROACTIVELEGISLATION

11

- 14

V. THELEGISLATIVEPROCESSVIOLATES

NAVAJOPARTICIPATORYDEMOCRACY

14-15

VI.

CONCLUSION

15

- 16

SignatureandCertificateof Service 16-17

TABLEOFCITATIONS

Cases

Judy

v.

White

8NavajoRep.510(Nav.Sup.Ct.2004)

15,

17-18

MacDonald

v.

Redhouse

6NavajoRep.342(Nav.Sup.Ct. 1991) 13

Office

of

the Navajo Nation President

v.

Navajo Nation Council

No.SC-CV-02-1O(Nav.Sup.Ct.June2,2010) 14-15

Ramah Navajo School v.Navajo Nation 8NavajoRep.

141

(Nav.Sup.Ct.2001) 15

Todacheene

v.

Shirley No.SC-CV-37-1O(Nav.Sup.Ct.August2,2010) 9, 15

Tso v.Navajo Housing Authority

No.SC-CV-20-06(Nav.Sup.Ct.December

6,2007) 15-16,

18

Statutes

1N.N.C.§3(2005)

7,13

1N.N.C.§203(2005)

8

2N.N.C.

§

221(2005)

9

2N.N.C.§700(2011 amend.)

10

2N.N.C.§110(2011amend.) 11

11

N.N.C.§8(2005)

9

11N.N.C.§205(2005)

5

1


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11 N.N.C. § 206 2005) 5

Rules o Court

Rule 13, Navajo Rules of Civil Appellate Procedure 4

Other uthorities

Austin, Raymond D., Navajo Courts and Navajo Common Law 2009) 16-17

Preston, Scott, It would Be Well OurLaw Enforcement

Was

Respected

by

Us

RobertW Young William Morgan, Navajo Historical

Selections 55-57 98-101 1954) - _ _ 6

Spruhan, Paul, n nnotated Timeline

of

the Navajo Presidential Election

Dispute January 27, 2014), SSRN: http//ssm.com/abstract=2556364.

'''''''


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1.

STATEMENT OF THE CASE FROM

TH AMICUS

PERSPECTIVE:

Joe Shirley, Jr., a candidate for the presidency

of

the Navajo Nation, thanks the Navajo Nation Supreme

Court for leave to submit an

amicus curiae

briefon the validity

of

Navajo Nation Council Resolutions Nos.

CD-80-14 and CD-81-14. Resolution No. CD-80-l4 sets a

runoff

election for president that allows all

candidates who ran in the previous primary election to run for office again. That includes Mr. Christopher

Clark Deschene, who was previously disqualified to run for office under the plain meaning

of

the

qualifications for office statue at

11

N.N.C.

§

8(A)(4) (2005) that states that one

of

the qualifications for

President is "Must fluently speak and understand Navajo and read and write English." Resolution No. CD

81-14 purports to pardon members

of

the Board

of

Election Supervisors (and the amicus will not address that

here).

A brief summary

of

the events leading up to this dispute is in order:]] Christopher Clark Deschene

filed a candidate application to run for the office

of

President

of

the Navajo Nation on April

of

20

14

with

a statement that he met the qualifications for that office, including a requirement that he "fluently speak and

understand Navajo." He affirmed that he could be removed as a candidate

ifhe

made a false statement. The

Election Administration certified his candidacy on April 25, 2014, along with 16 other candidates, and no

challenge was filed within ten days

of

the certification. There was a primary election on August 26, 2014

and Joe Shirley, Jr. received 21.36%

of

the vote, followed by a vote of] 9%

of

those voting for Deschene.

There was a challenge to Deschene's candidacy and an appeal to this Court from a determination by

the Office

of

Hearings and Appeals that the challengers (not including this

Amicus)

should have made their

1 Taken from Paul Spruhan, An Annotated Timeline the Navajo Presidential Election

Dispute

(January 27, 2015). Available at SSRN: http://ssm.comlabstract=2556364.

1

http://ssm.comlabstract%3D2556364/http://ssm.comlabstract%3D2556364/


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challenge within ten days of certification. The Court remanded the

case

to the Office of Hearings and

Appeals with an instruction to hold a hearing on Deschene s fluency in Navajo. The parties met on

September 29, 2014 to discuss how to meet the fluency standard, Deschene agreed that employees of the

Department

of

Dine Education could modify a test given to Navajo language teachers to test his fluency

and

a test was scheduled.

Deschene appeared at the testing site

on

October 2, 2014 and refused to take the test. The Office

of

Hearings and Appeals held a hearing on October 3,2014 where new counsel for Deschene stated that the

prior counsel did not have authority to stipulate to the Department

of

Dine Education test. There was

discussion of a motion for default for failure to take the test and the result was an agreement that Deschene

would

be

deposed on October 6, 2014. A confidential deposition was conducted

on

that date that the Office

of

Hearings and Appeals later characterized as one where Deschene refused to answer any question posed

in Navajo.

This Cour t rendered its full opinion

on

the question

of

the fluency requirement

on

October 8, 2014

holding that the challenge to Deschene s candidacy was proper and that the clear fluency requirement in the

statute was a valid regulation

of

the right to hold public office. t clarified the meaning of "fluency" under

the statute and ordered Deschene to "cooperate " with proceedings in the Office

of

Hearings and Appeals.

A merits hearing on Deschene's fluency in Navajo was held on October 9,2014 and, following a

review

of

a video

of

the deposition

and

questions put to Deschene in Navajo

and

English to test his fluency

the Office of Hearings and Appeals entered a default judgment against him. He took

an

appeal on the last

day he could, no certified copy of the OHA was appended to the notice

of

appeal as was clearly required by

the rule and

on

October 21,2014 the appeal was dismissed. The appeal was dismissed for good cause that

was well-grounded

in past

practice

and not

simply

an

obscure qu irk in a rule.

The judicial record to date shows that Christopher Clark Deschene is unqualified to be president of

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the Navajo Nation under a statutory provision with a lengthy history,2 the challenge to his candidacy based

on time was upheld because of the clear requirement that candidates verify the truth of their applications and

understanding that their candidacy can be challenged if any statement is proved to be false. The falsity

of

Deschene's assertion that he spoke fluent Navajo was established in fair proceedings where he refused to

cooperate or could not answer a simple question, put in Navaj and in English, on how a resolution becomes

law.

The true legal question before the Court is the validity of Resolution No. CD-80-14ofDecember

30 2014 that sets a new runoff election for candidates for president, including previously disqualified

candidate Christopher Clark Deschene. The case before the Court is not simply about separations of power

between branches

of

the Government

of

the Navajo Nation, but

of

the validity ofestablished Navajo Nation

political process. The questions

of

law and equity have to do with the fact that the Council's illegal actions

have caused the amicus serious injury to personal rights and property and put him

in

a position he should

not have been put in but for illegal Council action.

Rule

3

of the Navajo Rules

of

Civil Appellate Procedure requires

mici

to identify their interest,

certify having read the parties ' briefs and reasons why an amicus brie f is necessary. Joe Shirley, Jr. will

discuss those matters then submit his points as a friend of court.

ll.

JOE SIDRLEY,

JR.

HAS STANDING TO BE A FRiEND OF COURT:

The caption of this case names Christopher Deschene

as

the "Real Party in Interest," but Joe Shirley,

Jr. is a party with a significant interest of his own. He suffers deprivations of his liberty and due process

interests and he will be compelled to expend time, money and effort he would not otherwise have to expend

2 The legislative

history

of Section 8

of

the

Election Code

cites five Navajo Nation

Council

resolutions showing

Council

consideration of

the

qualifications of candidacy in

enactments

on April

6, 1990; October 19, 1990; April 27 1998;

January

24 2001; and

July

24,

2003. The fluency

requirement

was not a legislative mistake.

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if the Council's action is upheld. He should be placed in the position he would be but for illegal action as

a matter

of

both law and equity. As the timeline prepared by an attorney in the Navajo Nation Department

ofJustice shows, he got the highest number ofvotes in the August 26, 2014 primary election and got 21.36%

of the vote. The second highest vote-getter, Christopher Clark Deschene, got 19% and he was clearly not

eligible because of his false statement in his application for candidacy.

The primary election figures are these:

52,047 Navajo electors cast ballots in the 2014 primary election.

11,052 votes were cast for Joe Shirley, Jr., or 21.2% of the total.

9,831 votes were for Christopher Deschene,

or

18.8%

7,453 votes were for Russell Begaye,

or

14.3% of all votes cast.

42,216 votes were ot given to Mr. Deschene, or 81.8% of all votes.

Joe Shirley, Jr. was the winner as the candidate who got the most votes, and the resolution that runs

the primary all over again directly and unfairly harms his legal interests, described in this brief.

Aside from knowing what the Navajo voters actually approved under our election code the amicus

understands that CD-80-14 was the product

of

an unusual midnight session of the Navajo Nation Council

where proponents of the measure made clear their displeasure with the rulings of this Court (made in due

legal course) and argued that the decisions of this Court should overturned

by

the legislature.

hose·

arguments were driven

by

a noisy faction (that may have fronted for the disqualified candidate) that chose

to ignore the law and put pressure on a political body for improper action. The President signed the

resolution the day before his last day in office, and it is likely that he too bent the law in response to public

clamor.

There is another problem: The Election Code places limits on the maximum amounts candidates can

spend on primary and general elections. N.N.C.

§

205(A)(I) (2005) ($1.50 for each registered voter).

The penalties for exceeding that limit are significant, with a fine

of

$300 to $1,000, incarceration for up to

six months and being barred from elective office in the Navajo Nation for five years. N.N.C.

§

206

(2005). The current ceiling is approximately $167,000. That means that Mr. Shirley would have to spend

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limited funds on a primary election all over (and then a general election) and

not

be able to get his message

to the voters for a general election

in

a meaningful way. Such would hamper his free speech and freedom

ofassembly rights. The amicus has standing as the highest vote recipient in the primary election.

Joe Shirley, Jr.'s counsel read the briefs for petitioners Tsosie and Whitethome, the Navajo Board

of

Election Supervisors and Navajo Election Administration and the Navajo Nation Council.

Joe Shirley, Jr. agrees with the petitioners that the resolutions were enacted

in

violation

of

the separation

of

powers in Title (the governmental code) and

Dine

Bi

Beenahaz aanii.

The position

of

the Board

of

Election Supervisors that defers to the position

in

the Navajo Nation Council 's

brief

on the pardon resolution

only and asks for a "talking out" is noted

but

such is not relevant to this submission. The Navajo Election

Administration takes a position on the pardon that is not relevant to this submission, but Joe Shirley, Jr.

agrees with the conclusion that the Court should invalidate Resolution No. CD-80-14 and "hold the general

presidential election immediately."

Of

course the Court does not "hold" an election,

but

the meaning

of

the

recommendation at page 1

of

the brief is clear.) Joe Shirley, Jr. notes the Navajo Nation Council's position

in sidestepping the issues that the Court should provide some sort

of

"talking out" forum but also notes that

when the Navajo Nation Department

of

Justice submitted an

amicus curiae brief

on October 30, 2014

suggesting an informal "talking things out" session in prior contempt proceedings. The Court declined to

hold one during a show cause hearing in Chinle on October 31,2014. Whatever the considerations on

"talking out" may be now, they are the same as then. That process would likely fail and it should not hinder

the Court in rendering a decisive decision now.

While the suggestion that the parties should "talk things out" does comport with Navajo values, such

is useless when the Navajo Nation Council chose to disregard proper political process and take matters in

its own hands. This Court has described judges as

naat aanii

but Navajo history is not entirely clear on their

historical role. Scott Preston, a former vice chairman of the Navajo Tribal Council and noted medicine man,

who is named as a mentor by Navajo Nation political leaders, gave an account, in both Navajo and in

5


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English, on how traditional naat aanii or "headmen" functioned that is published

in

a collection by Robert

W. Young and William Morgan, Navajo Historical Selections (1954). The Navajo story is at 98 through 101,

and the English version, translated as It Would Be Well /fOur LawEnforcement Was Respected

by

Us, is at

55-57.

Preston said he was going to "bring out some things that have come to my knowledge" and,

in discussing proper attitudes toward police, he opened a discussion oftradition saying "Then there are some

old stories."

Id.,56.

"There were Peace Chiefs, they say."

Id.

He mentioned stories about "bad men" who

were "strong and who were out for trouble" and "they just fought it out."

Id.

(describing a revenge system).

He said "There were men who lectured to people, even at that time." Id. "And these lecturers would get

together with one in private and take the matter of his misbehavior up, and really tell him

of f

in no uncertain

terms, and would talk to him until be cried and decided to reform." Id.

When

he said he wouldn' t do it any

more, they would take an ember out of the fire, spit on it and throw it out the smoke hole with the crime (i.e.

wipe the slate clean). They would say, 1 have gotten rid of

my

faults; I'll never grab (do) it again.'" Id.

The process proposed

by

the counsel for the Navajo Nation Council is essentially one of resolving

a dispute by negotiation.

n

this situation that assumes that representative

of

the Council and the Board will

sit down with the two challengers, and amici, and reach a negotiated resolution. That would be an exercise

in futility, as likely noted

by

the Cour t previously, and it would leave the Council in the position of one

holding unfair controlling power

in

a power imbalance among the parties. The Court is

in

the position

of

naat aanii described by Scott Preston (a major contributor to our legal history) and itneeds to take the strong

position

of

a "lecturer" as described in his account. The Court needs to "tell off

in

no uncertain terms," for

reasons stated below.

t

is a naat aanii with the obligation to do so.

While Joe Shirley, Jr. agrees with the petitioners and the Navajo Election Administration that the

election should go forward after invalidating the most recent attempt to subvert the statutory scheme, his

approach is slightly different:

The issues he sees are:

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1

Whether Resolution No. CD-80-14 subverts Navajo Nation legislative process, including existing

statutory legislation and the

Dine Bi Beenahaz aanii

provisions adopted in the "Enactment

of

the 2011

Amendments to Title 2;"

2. Whether Resolution No. CD-80-14 was invalid from its inception as ex post facto legislation

prohibited

by

the Navajo Nation Bill ofRights at 1 N.N.C. § 3 (2005); and

3

Whether considerations

of

Navajo participatory democracy require that the election proceed

without further hindrance or delay.

ill.

THE RESOLUTION VIOLATES

THE

PROPER STATUTORY SCHEME:

There has been a lot

of

public debate about whether the language requirement in the election code

unfairly excludes the voice

of

the many Navajos who do

not

speak Navajo, minimalizes or trivializes the

voices

of

younger Navajos or those who live in urban areas and there are other positions on the fairness

of

the language requirement that Christopher Clark Deschene failed to satisfy.

He

did not adequately respond

to this Court's invitation in the first instance to point to how requiring him to understand Navajo violated

his rights under traditional Navajo legal principles.

Navajo Nation government went through a major crisis that led t the Title II governmental

amendments

of

1989 and i t restructured Navajo Nation government in legislative, executive and judicial

branches in the form that is now used. There are careful limitations on the powers ofall three branches and

clear requirements for legislation. Legislation is positivist law that assumes that an elected body ofdecision

makers is the primary source

of

law, stated in statutes. The Title

T

amendments framed current Navajo

Nation government along non-Navajo American republican (small R ) lines but the Navajo Nation Council

made a major reform in the statute codified as Chapter 2

of

Title 1

of

the Navajo Nation Code, titled

The

Foundation

ofthe

Dine', Dine' Law and Dine' Government" to establish the traditional bases

of

government.

It

focuses on the values of leadership rather than governmental form and t "declares and teaches" that It

7


18/27

is the right and freedom

ofthe

Dine' to choose leaders

of

their choice." 1 N.N.C.

§

203(A) (2005). There

is

no question that the means

of

that choice is a matter

of

separate statutory regulation. The quoted

subsection continues and lays out additional declarations and teachings about leadership that the people

choose "leaders who will use their experience and wisdom to always act

in

the best interest

of

the people;

and leaders who will also ensure the rights and freedoms

of

generations yet to come." Id. The statute speaks

to "rights and freedoms" and the Navajo Nation Council adopted the Navajo Nation Bill of Rlghts to state

basic rights and freedoms, that

c n

only be amended

by

popular referendum.

There is a legislative process that assumes the adoption of rational and proper legislation

following a legislative process and that was used to adopt the Navajo Election Code

of

1990 and the

provision

of

11 N N Co §

8(A)(4) (1995) that requires candidates for the offices

of

president and vice

president to "fluently speak and understand Navajo." While this Court construed that statute for a standard

of

fluency, the requirement is plain and clear and Mr. Deschene did not satisfy it. One might normally think

that

if

there is indeed popular dissatisfaction with the language requirement as a matter

of

public policy that

would be thoroughly debated and resolved

in

appropriate amendments to change or modify

it.

That is

not

what was done.

Amendments to existing statutes are done

by

resolution and the governmental code has a process to

do that at 2 N.N.C. § 221(2005). The actual vote on a given resolution under the statute is also regulated by

the Navajo Nation Council Rules

of

Order, and Rule 23(B) provides that "Council delegates who have

personal, family

or

business interests in matters being considered

by

the Council shall not participate

in

any

proceedings concerning the matter, including debate, and shall

not

vote on the matter."

This Court has previously taken judicial notice

of

the political climate

of

the time and a period when

one part of the Council tried to maintain power while another sought change in deciding the policy

foundations

of

a restriction on candidacy for the office

of

president.

Todacheene v Shirley

No. SC-CV -37

10, slip op. at 6 (Nav. Sup_ Ct. August 2, 2010) (application

of

term limit requirement). The "Annotated

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Timeline" authored

by

Paul Spruhan clearly sets

out

the events leading to the current briefmg order and

shows that this Counc il's membership had a particular agenda in setting aside the normal procedure of a

considered amendment or revision of the election code

in

place of upsetting the course of law for the two

fmalists for presidential office by simply reinstating things as they were prior to the disqualification ofMr:

Deschene in accordance with law We hear of no record of disqualification

by

any voting delegate, and the

resolution under consideration was adopted

by

a vote

of

11-1 (with 12 not being recorded as voting). The

resolution was not a duly-considered enactment of law-i t was partisan.

The western-American form

of

Navajo Nation Government was modified by another traditional

consideration in Resolution No. CAP-lO-ll, "The 2011 Amendments to Title 2 (AprU21, 2011).

t

was

. enacted

in

response to the reduction

of

the size ofthe Navajo Nation Council from 88 members to 24 and

an order of the Court to adopt new rules to regulate the substance and procedure of committee restructure.

One of the drafting commands was to integrate principles of Navajo governance into the amendments, and

a suggestion that basic principles of good governance should be put into the amendments was adopted. One

of the committees established in the res tructuring was the Naa bik iyati Committee, a "committee

of

the

whole," and the subsection of the amendments that establishes

it

~ q u i r s that "it shall use Nitsahakees,

Nahat' a, Iina and Siihasin in exercising oversight authority (including the authority to promulgate rules and

regulations)." t also vets proposed legislation and must use those principles in doing so. 2 N.N.C. § 700(A),

(E) and (F) (as amended).

Those are four principles of basic Navajo philosophy that follow the four directions paradigm and

they are (going from east to north):

Nitsahakees is the part ofthe process ofNitsahakees-Nahat' a-Iina-Siihasin which involves critical

thinking, and more broadly, to give direction and guidance to the issue at hand, in a constant cycle

of examining and analyzing issues for growth and development.

2 N.N.C. §

1l0(N)

(as amended) (defmition) (emphasis in the original).

Nahat a is the part of the process ofNitsahakees-Nahat'a-I ina-Siihasin to strategically plan while

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utilizing Dine' bi beehaz'aanii Bitse Silei (foundation o Dine' law), statutory laws, infonned

research and public input (through the use

o

the Naabik'iyati' process) in a constant cycle o

examining and analyzing issues for growth and development.

2 N.N.C.

§ IIO(M)

(emphasis in the original).

lina is the part o the process o Nitsahakees-Nahat'a-lina-Siihasin to collaboratively make and

implement a decision, which must be dynamic and vibrant to accomplish effective and efficient

outcomes, for sustaining life, in a constant cycle o examining and analyzing issues for growth and

development.

2 N.N.C. § llO(M) (emphasis in the original).

iihasin is the part

o

the process ofNitsahakees-Nahat'a-l ina-Siihasin to ensure resilience through

evaluationo decision-making and outcomes in a constant cycle o examining and analyzing issues

for growth and development.

2 N.N.C.

§ llO(T)

(emphasis in the original);

Given that the drafter used repetitive language in the definition o each o the directions or aspects

o

the paradigm the elements

o

each can be reduced to these principles:

Nitsahakees is aspects o the East and the rising Sun that, as used in the defmition, speak to critical

thinking by way

o

direction and guidance on the given issue for an end goal

o

growth and development.

t

is related to thinking, meditation, prayer and aspects o being that involve intuition, and that require

reflection for critical thinking. It is thinking itself, something to be done carefully and with due

consideration.

Nahat

a

a word that has made its way into Navajo jurisprudence previously, and sometimes

translated as planning, is aspects o the South and the full day and it speaks to planning strategically, using

foundational principles

o

Dine law, statutory law process or statutes, infonned research and public input.

t includes basics

o

governance in compliance with human rights

o

openness, transparency, fair notice, an

opportunity to participate and comment and considered decision-making.

ina is aspects

o

the West and it speaks to the implementation

o

thoughts and plans in a dynamic

and ''vibrant' ' ways that are designed to accomplish effective and efficient outcomes. Good thoughts or

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intuition, planning based on them and on essential governance principles and effective implementation are

all related concepts.

SUhasin aspects

of

the North, has not had a clear defmition in other accounts of the process,

but

it

is used in the governmental code to speak to

an

evaluation

of

outcomes

by

examining and analyzing issues

related to growth and development.

One thing not addressed in the defmitions is the notion that all four

of

the elements of the paradigm

or

model are so intimately interrelated that when they are used, and then examined to see how they applied

or

worked in a given situation, there is a holist ic effect. That means a recognition that the four parts are

related to each other

and

connected

and

that can be understood only by reference to the whole. What is that

whole ?

t

is, referring to the purposes in § 700, a meaningful exercise of oversight.

The paradigm applies to the case in the realization that there is no evidence of critical thinking in

simply running

an

election with the unqualified candidate

on

the ballot, failing to undertake informed

research into resolving policy differences over the qualifications of office by way of language abilities

(including, as advocated

by

some, being able to read and write English well) and failing to get public input,

putting in place a decision that will not accomplish the effective and efficient outcome ofan election with

integrity and refusing to look back and reflect

on

what was done. Among othe r things, the resolution that

sets a new primary did not take important mechanics of an election into account, including spending limits

and penalties for exceeding them.

Put another way, no logical method was used to approach the decision

of

this Court based on a plain

reading of the obvious meaning ofthe qualification statute so the only logical conclus ion is that the vote was

arbitrary, done without reference to the paradigm and invalid. There were obvious conflicts of interest in

the vote, obviously motivated

by

partisanship and the resolution cannot be implemented.

N

RESOLUTION CD-80-14 IS VOID

EX

POST F CTO

OR RETRO CTNE

LEGISLATION:


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The statute that guarantees the fundamental human rights

of

all human beings at 1 N.N.C.

§

3

(2005)

provides that basic rights ofl ife, liberty, the pursuit

of

happiness, equality under the law and equal protection

are guaranteed and there can be no deprivation

of

such rights by any bill

of

attainder or ex post facto law.

, The Latin speaks to legislation that is done after the fact and with retroactive application.

The Navajo Nation Supreme Court frrst dealt with

ex

post facto legislation

in

the case

of

MacDonald

v. Redhouse

6 Navajo Rep. 342 (Nav. Sup.

ct

1991), an election qualification case. Peter MacDonald, Sr.,

who was disqualified to run for president, contended that the election statutes that were used to disqualify

him from running were bills

of

attainder.

Id. 343.

The Court summarily dismissed the claim because it was

raised previously, but defined a bill

of

attainder as the act

of

a legislature that determines a person 's guilt

and imposes punishment.

Id.

The Court found that the essential

of

targeting MacDonald in legislation

was missing so punishment was not a consideration,

Id

As discussion

of

the challenge continued, the Court noted that the prohibition against both bills

of

attainder and ex post facto laws is closely linked because

of

mutual factors of '''denunciation and

condemnation

of

an individual by a legislature to impose retroactive punishment. Id. 345. That can also

include new legislative penalties which punish past conduct.

Id. 345.

The Court found that election law

changes were not specifically enacted to punish MacDonald or increase any penalty against

im

for

convictions

of

criminal offenses.

Id. 346.

While the targeting and specific punishment elements may not be obviously or directly present in

this case for purposes

of

the prohibition against ex post facto legislation, the punishment element arises

from a presumption that can arise from targeting so that where 'legit imate purposes do not appear, it is

reasonable to conclude that punishment

of

individuals disadvantaged by the enactment was the purpose

of

the decision makers.

'

Id.

at 344 (citation omitted). Can a similar presumption or inference be drawn here?

The case

of Office the Navajo Nation President v. Navajo Nation Council

No. SC-CV

-02-10

(Nav. Sup. Ct. June

2,2010)

was an application for a temporary restraining order

by

President Joe Shirley,

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Jr. against the Navajo Nation Council and its speaker to enjoin enforcement

of

a resolution placing Shirley

on administrative leave. Slip op.

1.

The Court had to resolve a sovereign immunity issue and in approaching

that the Court adopted the rule ofstatutory construction that We look to the language of the Act itse1fto see

if

the intent on this issue may be clearly inferred. If a plain reading of the statute does not provide sufficient

clarity, we will apply the following rul of construction: we will see

if

the language of the statute permits

a reasonable person to make a 'necessary inference: meaning an inference 'which is inescapable or

unavoidable from the standpoint of reason. Slip op. at 5 (citation omitted).

The Court found that the resolution in question was adopted to limit the type of law used in the

courts to push out traditional law and, fmding that there is a ''Navajo higher law, invalidated the resolution.

ld. at 12-13 (because it attempted to nullify that law).

Going first to the principles ofanother ex post facto case, in Judy v White 8 Navajo Rep. 510 (Nav.

Sup. Ct. 2004), the Court asked the rhetorical question, What makes a resolution invalid? Id. 537.

We

have said before that ex post facto legislation, laws which deny due process

or

equal protection

oflaw,

and

bills

of

attainder are all invalid forms oflegislation because they impact negatively on the substantive rights

of

individuals. We have further announced that resolutions passed

in

violation

of

certain procedures are

invalid. We now clarify what is self-evident: resolutions passed pursuant to an invalid law, even

if

all

procedures are properly followed, are invalid. ld. 537 (citation omitted). We know, from past litigation

involving

Mr.

Shirley, that he has a due process liberty interest that must be observed. Todacheene

v

Shirley No. SC-CV-37-1O, slip op. at 8 (Nav. Sup. Ct. August 2, 2010).

We can infer, from the circumstances set out in the Spruhan timeline

of

this dispute, past disputes

with this candidate

and

the Council over reduction of the size

of

the Navajo Nation Council and line item

veto and targeting him for criminal prosecution (that never materialized) that we can presume

or

infer that

Resolut ion No. CD-80-14 targeted

Mr.

Shirley. Ifit did not, and it was only enacted to favor

Mr.

Deschene,

a disqualified candidate, then it is corrupt and invalid because

of

its impact on the candidates, the public and

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the rule

oflaw

Also relevant are the rules that there is a presumption against retroactive legislation generally that

is '''deeply rooted in our jurisprudence.'" Ramah Navajo Community School v Navajo Nation 8 Navajo

Rep. 141, 148 (Nav. Sup. Ct. 2001) and the retroactive application oflegislation is not favored. Tso v

Navajo Housing Authority No. SC-CV-20-06, slip op.

at

3 (Nav. Sup. Ct. December 6, 2007). While not

all ex

p st

facto legislation is prohibited, legislation "in direct response

to

this Court's opinion" is not

appropriate where "it seeks to divest individuals or groups

of

a previously acquired right." Id. slip op. at

3. The "acquired right" that inures to both individuals and the public at large is the operation of the current

election laws on candidacy, and Court decisions applying them. There is an element of reasonable

expectation that lies at the heart

of

all legislation that a law will remain in place until it is

validly

amended

for reasonable public policy reasons of purposes.

The Council's actions express the kindsof ills that the Title

n

A nendments sought to cure, including

the Navajo Nation Council acting as a court or the discredited Supreme Judicial Council ofthe past. Both

interpretations

of

bills

of

attainder and ex post facto legislation make it clear the legislatures must not act

as judicial bodies, or judicial review bodies (like the Supreme Judicial Council) and must not improperly

tinker with judicial decisions.

V

THE LEGISLATIVE PROCESS VIOLATES NAVAJO PARTICIPATORY DEMOCRACY:

•••

_

_. ••

_

. .

•

_'

"

..

4

...

_ _

__ _ _

_

,

_

. ~ . .

We are fortunate that Navajo Nation law responds to public expectations and desires in a mature

body of decisional law, supplemented by appropriate statutes, and we are also fortunate to have a jurist

of

high standing like the Honorable Raymond D. Austin. His authoritative text on Navajo common law, Navajo

Courts and Navajo Common Law (2009) has gained worldwide attention because it is one, if not the only

one, of texts solely devoted

to

the laws of a given indigenous People. Having discussed Navajo values and

perceptions

of

equality the Austin text goes on to discuss participatory democracy and how it infonned

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Navajo views ofpolitical liberty. ld., at 101. Beginning with a case decision that declared the egalitarian

concept as one necessary for participatory democracy, the Navajo Nation Supreme Court went on to discuss

the doctrine

of

participatory democracy this way:

Navajo beehaz aanii speaks to political liberty, and we apply Navajo common law rather than the

Anglo concept

of

political liberty. In Navajo tradition, government and governing was a matter

of

the consensus of the people, and Navajos had a participatory democracy. t was, in fact, one of the

purest democracies in human history. Long before the United States

of

America extended the

privilege and right to vote to those who did not own property and to women, all Navajos participated

in public decisions. Therefore there is a strong and fun fundamental tradition that any Navajo can

participate in the processes

of

government, and no person who is not otherwise disqualified by a

reasonable law can be prohibited from holding public office.

ld., 102 (citation omitted).

The reasonable law

that

disqualifies Christopher

Clark

Deschene from running for either the

scheduled election or the one the Council is attempting to foist on the voting public is that he does not speak

Navajo, and a law on the books for a long time, and carefully considered several times, declares that in plain

language. The response was the Council making a decision that can hardly be called a public one, and

without the benefit

of

meaningful public discussion and participation, but instead based on internal

factionalism and favoritism and longstanding disrespect for this amicus because of his advocacy of

government reform.

To summarize, this resolution violates basic human rights principles of transparency, meaningful

notice to the public, opportunities for public comment and participation, and making wise public policy

choices that are then translated in meaningful legislation. The process violated meaningful standards of

Navajo participatory democracy.

VI

CONCLUSION:

The amicus process is not a popular vote and the Court retains the ultimate authority and duty to

declare what the law is as applied to the case before it. The Spruhan Timeline or Chronology shows a prior

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;

deliberative process where everyone had a due process right to their day in court and where the Court made

difficult choices in applying existing law to declare the law ofthe case. The Judy v White decision, above,

involved corrupt and political Council motivations and this Court, in telling us what it is that makes a

Council resolution invalid told us that

ex

post facto legislation, laws which deny due process or equal

protection oflaw, and bills of attainder are all invalid forms oflegislat ion because of their negative impact

on the substantive rights

of

individuals. Supra 8 Navajo Rep. at 537. The Court capped that declaration in

the case

of so v

Navajo Housing Authority by declaring that where legislation seeks to divest individuals

or

groups of a previously-obtained right such is invalid. Supra slip op. at 3.

This case is about reasonable expectations embodied in the Election Code and those created by

decisions of this Court following due process opportunities to be heard. This case is about depriving the

prevailing candidate

of

the primary election of the fruits ofhis hard-won victory and likely about elements

in Navajo Nation politics using an improper Council vote to get back a t Mr. Shirley for his advocacy of

government reform. This court must invalidate Resolution CD-80-14 insofar as it does not serve valid

legislative purposes and order a general eiection without Mr. Deschene at the earliest feasible date. That

election should only be between Joe Shirley, Jr. and Russell Begaye as the only two candidates qualified

under existing law.

DATED this 5

th

day ofFebruary, 2015

CERTIFICATE SERVICE

I hereby certify that on the 5

th

day ofFebruary, 2015, copies

of

the foregoing friend ofcourt briefwere served

upon the following counsel

of

record:

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,

David

R

Jordan

P.O. Box 840

Gallup, NM 87305-0840

Counsel for Dale Tsosie

and

Justin Jones

P.O. Box 2240

Farmington, NM 87499

Counsel for Hank Whitethorne

Steven C Boos

Maynes, Bradford, Shipps

&

Sheftel

P.O Box 2717

Durango, CO 87302

Co sel the Navajo Nation Council

Kellie

A.

Peterson and

James Griffith

Mangum, Wall, Stoops & Warden

P.O. Box

10 100

North Elden St

. F J ~ g S t a f f A:l: 8 6 ~

Counsel, Navajo Board Election Sups.

Michael P. Upshaw

8171 East Indian Bend Road, Ste. 101

Scottsdale, AZ 85250

Counsel for Navajo Election Admn.

17

Briefs on the Navajo Nation presidential election

Documents

Transcript of Briefs on the Navajo Nation presidential election