1. law, govt and politics

No. SC-CV-68-14 SUPREME COURT OF THE NAVAJO NATION DALE TSOSIE & HANK WHITETHORNE,
Petitioners,
v.
NAVAJO BOARD OF ELECTION SUPERVISORS & NAVAJO ELECTION ADMINISTRATION, Respondents; and
CHRISTOPHER DESCHENE,
Real Party in Interest.
BRIEF.oF JOE SHIRLEY, JR.
Amicus Curiae
APPEARAJ'l"CES:
James W. Zion
Attorney for Joe Shirley, Jr.
3808 Ladera Drive N.W.
Albuquerque, NM 87120
(505) 839-9549
David R. Jordan
Attorney for Dale Tsosie
P.O. Box 2240
Gallup, NM 87305-0840
Justin Jones
Attorney for Hank Whitethorne
P.O. Box 2240
Farmington, NM 87499
Kellie A. Peterson &
James Griffith
Mangum, Wall, Stoops & Warden
Attorneys, Navajo Bd. Election Sups.
P.O. Box 101100 North Elden St.
Flagstaff, AZ 86002
Michael P. Upshaw
Attorney for Navajo Election Administration
8171 East Indian Bend Road, Ste. 101
Scottsdale, AZ 85250
Steven C. Boos
Maynes, Bradford, Shipps & Sheftel
Attorney for Navajo Nation Council
P.O. Box 2717
Durango, CO 81302
TABLE OF CONTENTS Subject Page(s)
I. STATEMENT OF THE CASE FROM THE AMICUS' PERSPECTIVE
1 -3
II. JOE SHIRLEY, JR. HAS STANDING TO BE A FRIEND OF COURT
3-7
ill. THE RESOLUTION VIOLATES THE PROPER
STATUTORY SCHEME
7 - 11
RESOLUTION CD-80-14 IS VOID EX POST FACTO
OR RETROACTIVE LEGISLATION
11 - 14
THE LEGISLATIVE PROCESS VIOLATES
NAVAJO PARTICIPATORY DEMOCRACY
14-15
CONCLUSION
15 - 16
IV. V. VI. Signature and Certificate of Service 16-17
TABLE OF CITATIONS
Cases
Judy v. White, 8 Navajo Rep. 510 (Nav. Sup. Ct. 2004)
MacDonald v. Redhouse, 6 Navajo Rep. 342 (Nav. Sup. Ct. 1991)
Office ofthe Navajo Nation President v. Navajo Nation Council,
No. SC-CV-02-1O (Nav. Sup. Ct. June 2, 2010)
Ramah Navajo School v. Navajo Nation, 8 Navajo Rep. 141 (Nav. Sup. Ct. 2001)
Todacheene v. Shirley, No. SC-CV-37-1O (Nav. Sup. Ct. August 2,2010)
Tso v. Navajo Housing Authority, No. SC-CV-20-06 (Nav. Sup. Ct. December
6,2007)
15, 17-18
13
14-15
15
9, 15
15-16, 18
Statutes
1 N.N.C. § 3 (2005)
1 N.N.C. § 203 (2005)
2 N.N.C. § 221(2005)
2 N.N.C. § 700 (2011 amend.)
2 N.N.C. § 110 (2011 amend.)
11 N.N.C. § 8 (2005)
11 N.N.C. § 205 (2005)
7,13 8
9
10 11 9
5
1
5
11 N.N.C. § 206 (2005)
Rules of Court
Rule 13, Navajo Rules of Civil Appellate Procedure
4
Other Authorities
Austin, Raymond D., Navajo Courts and Navajo Common Law (2009)
Preston, Scott, It would Be Well If Our Law Enforcement Was Respected
by Us, Robert W. Young & William Morgan, Navajo Historical
_._... -- --Selections 55-57 & 98-101 (1954)
Spruhan, Paul, An Annotated Timeline ofthe Navajo Presidential Election
Dispute (January 27, 2014), SSRN: http//ssm.com/abstract=2556364.
"'''''''
ii
16-17
6
1. STATEMENT OF THE CASE FROM THE 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 brief on the validity ofNavajo 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 ofthe Board ofElection 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 ofHearings and Appeals that the challengers (not including this Amicus) should have made their
1 Taken from Paul Spruhan, An Annotated Timeline ofthe Navajo Presidential Election
Dispute (January 27, 2015). Available at SSRN: http://ssm.comlabstract=2556364.
1
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 Court 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. It 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 ofthe 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 ofappeal 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 quirk in a rule.
The judicial record to date shows that Christopher Clark Deschene is unqualified to be president of
2
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 oftheir 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 0 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 ofpower
between branches ofthe 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 13 of the Navajo Rules of Civil Appellate Procedure requires amici to identify their interest,
certify having read the parties' briefs and reasons why an amicus brief 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 ofthis 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
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.
2
3
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 not 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. Those·
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. 11 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. 11 N.N.C. § 206
(2005). The current ceiling is approximately $167,000. That means that Mr. Shirley would have to spend
4
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
of assembly 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 ofthe separation of
powers in Title
n (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 briefon 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." (Ofcourse the Court does not "hold" an election, but the meaning ofthe
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 ofthe 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
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 Law Enforcement 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 offin 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. In this situation that assumes that representative ofthe 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 Court 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. It 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:
6
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 of Rights 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 ofpublic 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 to the Title II governmental
amendments of 1989 and it 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 IT 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 ofgovernment.
It focuses on the values of leadership rather than governmental form and it "declares and teaches" that "It
7
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 ofgenerations 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 can 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 ifthere is indeed popular dissatisfaction with the language requirement as a matter ofpublic 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 ofthe political climate ofthe time and a period when
one part of the Council tried to maintain power while another sought change in deciding the policy
foundations ofa restriction on candidacy for the office ofpresident. 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
8
Timeline" authored by Paul Spruhan clearly sets out the events leading to the current briefmg order and
shows that this Council'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-it 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). It 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 restructuring was the Naa'bik'iyati' Committee, a "committee of the
whole," and the subsection of the amendments that establishes it r~quires that "it shall use Nitsahakees,
Nahat'a, Iina and Siihasin in exercising oversight authority (including the authority to promulgate rules and
regulations)." It 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-Iina-Siihasin to strategically plan while
9
utilizing Dine' bi beehaz'aanii Bitse Silei (foundation of Dine' law), statutory laws, infonned
research and public input (through the use of the Naabik'iyati' process) in a constant cycle of
examining and analyzing issues for growth and development.
2 N.N.C. § IIO(M) (emphasis in the original).
lina is the part of the process of 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 of examining and analyzing issues for growth and
development.
2 N.N.C. § llO(M) (emphasis in the original).
Siihasin is the part of the process ofNitsahakees-Nahat'a-lina-Siihasin to ensure resilience through
evaluation ofdecision-making and outcomes in a constant cycle of 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 of each of the directions or aspects
of the paradigm the elements of each can be reduced to these principles:
Nitsahakees is aspects of the East and the rising Sun that, as used in the defmition, speak to critical
thinking by way of direction and guidance on the given issue for an end goal of "growth and development."
It is related to thinking, meditation, prayer and aspects of 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 ofthe South and the full day and it speaks to planning strategically, using
foundational principles ofDine ' law, statutory law process or statutes, "infonned research" and public input.
It includes basics of governance in compliance with human rights of openness, transparency, fair notice, an
opportunity to participate and comment and considered decision-making.
Iina is aspects of the West and it speaks to the implementation ofthoughts and plans in a "dynamic"
and ''vibrant'' ways that are designed to "accomplish effective and efficient outcomes." Good thoughts or
10 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 ofoutcomes 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 "holistic" 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"? It 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 other 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 ofthis Court based on a plain
reading ofthe obvious meaning ofthe qualification statute so the only logical conclusion 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 FACTO OR RETROACTNE LEGISLATION:
11
The statute that guarantees the fundamental human rights ofall human beings at 1 N.N.C. § 3 (2005)
provides that basic rights oflife, liberty, the pursuit ofhappiness, 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 ofMacDonald
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 ofattainder. 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 ofan 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 him 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 "'legitimate 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 of 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,
12 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 ofthe Act itse1fto see
ifthe intent on this issue may be clearly inferred. Ifa plain reading of the statute does not provide sufficient
clarity, we will apply the following rule 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 ofattainder 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
Resolution 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 ofits impact on the candidates, the public and
13 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 post 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 kinds ofills 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
14
Navajo views of political 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 ofpolitical liberty. In Navajo tradition, government and governing was a matter of
the consensus of the people, and Navajos had a participatory democracy. It 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
15 -------------------~-
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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 oflegislation 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 Tso 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 of his hard-won victory and likely about elements
in Navajo Nation politics using an improper Council vote to get back at 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 5th day of February, 2015
CERTIFICATE SERVICE
I hereby certify that on the 5th day ofFebruary, 2015, copies ofthe foregoing friend ofcourt briefwere served
upon the following counsel of record:
16
. ,
Kellie A. Peterson and
James Griffith
Mangum, Wall, Stoops & Warden
P.O. Box 10/100 North Elden St.
David R. Jordan
P.O. Box 840
Gallup, NM 87305-0840
Counsel for Dale Tsosie
.FJ~gStaff,
and
Justin Jones
P.O. Box 2240
Farmington, NM 87499
Counsel for Hank Whitethorne
A:l: 8600~
Counsel, Navajo Board Election Sups.
Michael P. Upshaw
8171 East Indian Bend Road, Ste. 101
Scottsdale, AZ 85250
Counsel for Navajo Election Admn.
Steven C. Boos
Maynes, Bradford, Shipps & Sheftel
P.O Box 2717
Durango, CO 87302
Co sel
the Navajo Nation Council
17