In San Juan County, Utah, a slight majority of the population is Navajo. Yet there is only one Navajo on the county’s three-member board of commissioners – and, critics say, that isn’t likely ever to change, because of the way the voting districts are currently drawn.
The discrepancy has prompted the Navajo Nation to sue the San Juan County commissioners in federal District Court. The suit, filed Jan. 12, alleges that the county’s district apportionment map “impermissibly infringes on Plaintiffs’ rights under the Equal Protection Clause of the Fourteenth Amendment because the Commission Districts are not substantially equal in population.”
In 1984 the U.S. government sued the San Juan County commissioners and clerk in federal District Court alleging that the county’s use of at-large voting procedures was denying Indian residents of the county full participation in the political process.
The resulting consent decree required the county to divide into three districts of equal population, each of which would elect a single county commissioner. (In the other counties in Utah, voting continues to be atlarge.) It also required that the configuration comply fully with the Voting Rights Act, which protects the rights of Americans to participate in the electoral process without discrimination.
Until recently, voting for the county commission has been done in accordance with that consent decree, and the districts that were created so long ago stayed the same.
In 1984, Mark Maryboy became the first Navajo elected to the county commission, representing the newly created, predominantly Navajo District 3. It includes areas on Cahone Mesa around Hovenweep east to the Colorado border, south to Arizona and the communities of Aneth, Montezuma Creek, and the Red Mesa chapters.
His brother, Kenneth Maryboy, holds that commission seat today.
Members of the Navajo Nation reside in all three districts and have reservation lands in Districts 1 and 3.
According to the complaint filed by the Navajos, District 1 encompasses 5,347 people and is 29.96 percent Native American; District 2 has 4,550 people and is 29.21 percent Native American; and District 3 has 4,949 people, 92.8 percent of them Native American.
An alternate map
San Juan County, in the corner of southeast Utah, is rough, red-stone country divided by canyons, waterways and mountains. Access is limited by unpaved roads and long distances between populated areas.
Voting precincts had to be established, according to current county Clerk/Auditor Norman Johnson, “in population areas where there were buildings that could be used to hold elections – places where the population could gather.”
But things are changing.
According to the 2010 census, the Native American population, and by extension the potential vote, has grown to 50.4 percent of San Juan County’s total population of 14,746.
The San Juan County commission has not redrawn the commission districts in 30 years, and the Navajo Nation is now demanding that it do so.
At stake is the possibility of the voters replacing one of the current non-Navajos with another elected Navajo – which could have broad implications for how the county is governed and how it spends its money.
To reflect the changes in the 2010 census, the ideal population count for each of the three county-commission districts today would be 4,915.
Leonard Gorman, executive director of the Navajo Nation Human Rights Commission, created a three-district map using current census blocks that apportions the population equally in each district. He presented the map at the Sept. 12, 2011, commission meeting, urging the board to adopt it.
In November the three commissioners and Clerk Johnson presented their own alternate map and solution to the public. The commissioners resist the use of censusblock data as the sole method for balancing the division of population, and rely instead on voting precincts as a measure for each district.
Johnson says that they arrived at their district population numbers by overlaying the precinct maps on the current census blocks. The population is made up of people, he says: “We do not maintain any records based on race. That is illegal.”
The commissioners’ response to Gorman’s proposed map has been that the districts work fine largely as they are now. “The Navajo Plan, as I understand it, redistricts the whole commission districts and in doing so it divided the community of Blanding into three,” said commission chair Bruce Adams. “That doesn’t make sense according to the 1984 consent decree, where communtiies of common interest should not be divided.”
Instead, the commissioners voted 2-1 on Nov. 14 to shift only two small precincts in Ucolo and Cedar Point from District 1 to 2. Maryboy dissented.
“It was an adjustment that would fix it easily without having to redo the whole redistricitng,” Adams said.
According to federal law, the standard population deviation between districts cannot be more than 10 percent. The deviation is calculated by adding together the deviation for the most over-represented and under- represented districts. According to statements in Gorman’s complaint, the numbers in the commissioners’ map don’t add up.
Applying the U.S. Supreme Court’s prescribed calculation method to the figures compiled in the San Juan commissioners’ map, the greatest population variance between the current commission districts in San Juan County is at least 16.62 percent.
According to Gorman, “The current map violates the Equal Protection Clause of the Fourteenth Amendment, which requires that electoral districts have substantially equal populations to provide each citizen with an equal vote.”
A sprawling district
Adams, the commissioner representing District 1, says that the system in place has worked since the 1980s and guarantees that the Navajos are represented on the commission.
His district also includes a substantial number of Navajo people as well as rich natural resources. Its western boundaries lie deep within gorges cut by the Colorado and San Juan Rivers. It stretches through rugged mesas, cliffs, tributary canyons and tourist destinations such as Cedar Mesa, Comb Wash, Natural Bridges and the eastern side of Glen Canyon National Recreation Area/ Lake Powell.
At the southern, Arizona border of Adams’ district sit the Navajo communities of Oljeto and Navajo Mountain, connected to the northern, mostly Caucasian voting precincts at the top of the county.
It’s a massive land base populated with only 1.9 people per square mile. The drive from the county seat in Monticello to Oljeto is 2.5 hours and an additional 3 hours on the only access road to Navajo Mountain – a necessity that Navajo residents in the communities live with daily.
Adams, by all accounts, has worked hard to look after the interests of the Navajos within his district and within the county in general.
“I attend chapter meetings every month and have lobbied on behalf of the Navajo communities at the local level, in D.C. and the state,” he said in a telephone interview. “I’m doing everything I can to help with roads, the elderly and aging, access to potable water.”
Adams points out a recently completed multimillion-dollar project in the Oljeto community that paved a 12-mile road to the chapter house. “I found funds in stimulus money and support from former Utah Senator Bob Bennett, who earmarked another million to finish the road.”
“With his involvement and leadership we’re able to do projects like the road overlay, but also work on a plan to build a road between Oljeto and Navajo Mountain,” said James Adakai, Oljeto Chapter vice president.
In 2006 the fires at Navajo Mountain contaminated the community’s water source and water-treatment tank. Adams said he was instrumental in getting help immediately to unplug the ash and silt from the water supplies. He also began to seek a long-term solution. Progress on the multi-year pipeline project will bring water from Inscription House Chapter to Navajo Mountain.
“It’s about halfway finished today,” Adams said. “It’s being built by the Navajo Nation with partial funding from the Navajo Revitalization funds. I sit on that board by statute as the commissioner from Ojeto and am able to support funding that helps the com munities in my district.”
Adams is good at finding the revitalization funds for such projects, said Adakai. The Navajo Mountain Road project now has about $200,000 for preliminary work and a feasibility study. He’s been working with folks from Navajo Mountain and Oljeto for many years.
“He was able to use a law firm to lobby in Washington, D.C., by collaborating with a coalition of commissioners to maintain road and development funds for projects of infrastructure, education, health and a wide range of activities and needs. I really do appreciate his help,” Adakai said.
One person, one vote
But the issue is more than the commissioners’ representation of people in their districts. Instead, the center of the matter is the diminished value of each vote in districts drawn with unequal populations, and in this case, when a substantial number belong to one racial group.
According to the suit, the current commissioners’ map “violates the Voting Rights Act which prohibits any voting standard, practice, or procedure that, on the totality of the circumstances, impairs the ability of minority groups to elect candidates of their choice.”
In the proposed Navajo Nation map, the districts are equally divided with 4,915 people, giving each vote equal weight.
If the commissioners’ map – with a 9.34 percent population deviation in District 1, and a total aggregate deviation over 16 percent – is adopted, and the total configuration does not meet the Voting Rights “community of interest” standard within the district, then critics say the votes cast by Navajo voters in Oljeto and Navajo Mountain are diminished in value regardless of the contiguous boundaries.
By January 2012 the sides had reached an impasse, and the Navajo Nation sued county commissioners Adams, Maryboy, and Phil Lyman, along with Johnson. On behalf of the members of the Navajo Nation living in San Juan County, the Navajo Nation and Human Rights Commission is demanding that the San Juan County officials re-apportion the county and re-draw the commission district map to take account of the 2010 census data.
If the current commissioners’ map is used it would violate the constitutional rights of Navajos living in San Juan County, the suit charges. The Navajos are asking that further elections under the current map be prohibited, and that San Juan County be reapportioned as far in advance of the 2012 elections as is possible.
“Without the intervention of this court, I am fearful that the lawfully required redistricting of San Juan County likely will not occur before the 2012 elections and that compliance with the one person one vote rule and the Voting Rights Act likely will not occur,” Gorman stated.
University of New Mexico American Studies Associate Professor Jennifer Denetdale serves on the Navajos’ Human Rights Commission in an advisory capacity. She is the author of two books about Diné history.
She told the Free Press, “The NNHRC is setting a standard on how tribes can look at international regulations regarding indigenous rights.”
Article 3 of the U.N. Declaration on the Rights of Indigenous Peoples states, “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
Gorman describes the statement as a fundamental model for equity. “It’s really about something deeper,” he says, “about pre-existing Native law before first contact with the migrants [colonists] and violations of individual human rights.”
The Red Mesa and Teec Nos Pos chapters, both in Maryboy’s district, and Oljeto Chapter passed resolutions in December 2011 supporting the NNHRC and the Navajo Nation’s redistricting lawsuit. Navajo Mountain passed the resolution in September, adding that they support the Navajo resistance to retrogression (a return to at-large procedure prior to 1984) and all efforts to dilute the strength of the Navajo vote.
All four chapters approved the Navajo Nation map submitted by Gorman to the commissioners.
An attempt to return to the at-large method requires a vote of the county and is subject to the 1984 consent decree. Adams does not support that solution. “We should not return to at-large voting. It would definitely not be in the best interests of the county.”
If the court rules in favor of the Navajo Nation, the commission will be bound to re-district. The Navajo plaintiffs will then have a right to oversight, to examine the redistricting for subtleties or maneuvers that could gerrymander the districts. If evidence is found that the maps do not comply with the court’s mandate, then the plaintiffs can ask the court to nullify the map and begin again until the parties create a map that guarantees all voters’ rights are respected.
Attorney Brian M. Barnard, litigating on behalf of the Navajos, clarified in an email to the Free Press that, “The County, through the commission, does the redistricting, however it must comply with the equal protection clause of the U.S. Constitution, oneperson, one-vote. If the County creates a redistricting plan that violates either of these the Court will not allow the new plan to be implemented.”
Gorman hopes the issue can be resolved on the lowest, most local level possible and that “we reach common understanding with the county commissioners.”
The commissioners must respond to the lawsuit by Feb. 7. No hearing date has been set as of this publication.
Sentiment in the letters-to-the-editor sections of local papers has been running largely against the Navajo proposal, with some writers stating that because the Navajos don’t pay county property taxes, their claims are weak.
“Now according to the theory: the Navajo Nation is a Sovereign Nation,” wrote Larry J. Wells of Monticello in the Feb. 1 San Juan Record.
“But my taxes support them, they do not support themselves, nor tax themselves. . . I do believe though it is beyond interesting that a sovereign nation can sue me because of how my voting system works. Now not only will I support the ‘Sovereign Nation’ and pay for them to sue me, but I will pay my county to defend against an illegal lawsuit.. . .”
Wells called for an end to the reservation system and said, “Racism in any form, from any people, is a hard, sad road – it is not Human Rights.”
However, in another letter in the same paper, Marilyn Boynton of Blanding said the Navajos’ suit was justified, although she also praised Adams for his work on their behalf.
“. . .all these Navajos are stuck onto Anglos in the county’s far north,” she wrote. “It is 220 miles from Navajo Mountain to Monticello. No wonder they don’t nominate commission candidates. This minority-splitting is illegal under the Voting Rights Act. I know it is difficult to sort our situation out fairly, but the way the county is in reality constituted Democrat vs. Republican and the way our commission behaves is totally out of whack. Nor do you have to pay property taxes in this U.S. of A. to vote. Never do I hear Republican commissioners give an iota of credence to the more than half of our population who are Democrats.”